/Q-X'<i^^-— ^e^.  / 1/3 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE  LAW 


OF 


DECEDENTS'  ESTATES 

INCLUCING  WILLS 


THE  LAW 

OF 

DECEDENTS'  ESTATES 

INCLUDING  WILLS 


An   Abridgement   for  the   Use   of   Law  Students 

OF  J.  G.  Woerner's  Great  Treatise  for 

Practitioners  on  "The  American 

Law  of  Administration  " 


EDITED  BY 

WM.  F.  WOERNER  and  F.  A.  WISLIZENUS 

Instructors  in  the  Law  Departments  op  St.  Louis  and 
Washington  Universities 


BOSTON 

LITTLE,  BROWN,  AND   COMPANY 

1913 


Copyright,  1913, 
By  William  F.  Woerner. 


All  rights  reserved 

T 
1913 


THE    tTNIVERSITT    PRESS,   CAMBRIDGE,  TJ.  8.  A. 


PREFACE. 

This  book,  specially  designed  for  use  as  a  text-book  in 
law  schools,  is  an  abridgment  and  condensation  into  a  single 
volume  of  Judge  J.  G.  Woerner's  monumental  work  on  "The 
American  Law  of  Administration."  The  editors,  in  lecturing 
upon  the  subject  of  wills  and  administration  of  decedents' 
estates,  respectively  in  the  law  departments  of  Washington 
and  St.  Louis  Universities,  found  no  suitable  text-book  for 
students  covering  this  field,  which  is  of  such  practical  and  grow- 
ing importance  in  a  law  course.  The  best  plan  devised  was 
to  lecture  from  Judge  Woerner's  book.  But  that  great  treatise 
is  adapted  to  the  needs  of  the  practising  lawyer  and  the  courts, 
not  to  students.  Though  containing  the  fundamentals  neces- 
sary to  a  proper  understanding  of  the  subject  by  the  student, 
it  contains  also  a  tremendous  amount  of  matter,  nicety  of 
detail,  and  citation  of  authorities,  all  of  which  is  indispensably 
valuable  to  the  practitioner,  but  is  only  a  source  of  confusion 
to  the  beginner.  In  the  light  of  their  experiences  in  teaching 
this  subject,  these  editors  therefore  conceived  the  idea  of  elim- 
inating all  matter  not  essential  from  the  elementary  viewpoint, 
and  otherwise  so  modifying  the  main  treatise  as  to  make  it 
of  special  adaptation  to  the  needs  of  the  beginner  and  properly 
to  ground  him  in  this  field  of  the  law. 

The  citation  of  cases  is  limited  to  a  few  which  illustrate  the 
principles  involved  or  mark  the  development  of  the  law  upon 
this  live  and  growing  subject.  The  main  work  and  the  present 
abridgment   are   not   competitive;   each  performs  a  separate 


776710 


VI  PREFACE. 

and  independent  function  —  the  former  is  for  the  lawyer,  the 
latter  for  the  learner.  The  active  practitioner  should  of  course 
consult  the  main  work  for  the  authorities,  details,  and  statu- 
tory references  which  are  necessary  in  actual  practice.  But 
for  the  acquisition  of  the  essentials  necessary  to  a  thorough 
understanding  of  the  subject  by  the  student,  the  editors  trust 
that  this  abridgment  will  supply  a  much-felt  demand. 

Wm.  F.  Woerner. 

F.   A.   WiSLIZENUS. 
St.  Louis,  May,  1913. 


TABLE   OF   CONTENTS. 

Page 

Preface v 

Table  of  Cases  Cited xxxi 


INTRODUCTION. 

OF  THE  NATURE  OF  PROPERTY  AND  THE  PRINCIPLE 
DETERMINING   ITS   DEVOLUTION. 


CHAPTER   I. 


OF   PROPERTY   IN    GENERAL. 


1.  Nature  of  Property 1 

2.  Nature  of  Law 2 


CHAPTER   II. 

EFFECT   OF   THE    FEUDAL   SYSTEM   IN    AMERICA. 

§  3.  Feudal  Influences      3 

§  4.  Modified  in  England  by  Statutes 3 

§  5.  Incongruity  of  the  Rule  in  America 4 

§  6.  Function  of  Special  Courts  for  Administration 5 


TITLE   ONE. 

OF  THE  DEVOLUTION  OF  PROPERTY  ON  THE  DEATH  OF  ITS 

OWNER. 


PART   I. 
Of  the  Devolution  as  Determined  by  the  Act  of  the  Owner. 

BOOK  ONE. 
OF  TESTAMENTARY   DISPOSITION   OF   PROPERTY, 

7.  What  is  Disposable       7 

8.  Disposition  by  Will  or  in  Case  of  Intestacy 7 


Vlll  TABLE   OF   CONTENTS. 


CHAPTER   III. 

op  the  external  limits  placed  upon  testamentary  capacity. 

Faoe 

9.  The  Right  to  make  a  Will 8 

10.  The  Right  to  will  Realty  at  Common  Law 8 

11.  Testamentary  Capacity 9 

12.  Aliens 9 

13.  Infants      11 

14.  Married  Women 12 


CHAPTER   IV. 

INCAPACITY   ARISING   FROM   MENTAL   DISABILITIES. 

§  15.  Degree  of  Mental  Vigor  Requisite  to  make  a  Will 13 

§  16.  Incapacity  of  Idiots,  Imbeciles,  Deaf,  Dumb,  and  Blind     ...  14 

§  17.  Limatics 15 

§  18.  Presumption  of  Sanity 16 

§  19.  Presumption    of    Continuance    of    Proved    Insanity  —  Ijucid 

Intervals 17 

§  20.  Opinions  of  Non-experts  as  to  Sanity 17 

§  21.  Incapacity  in  Consequence  of  Force,  Fraud,  or  Intimidation  .  18 

§  22.  Incapacity  arising  from  Undue  Influence 18 

§  23.  Presumption  against  Legacies  to  Fiduciary  Advisers 20 

§  24.  Presumption  as  to  Seamen's  Wills 20 

§  25.  Partial  Avoidance  of  Will  by  Undue  Influence 20 

CHAPTER  V. 

FORM,    EXECUTION,    AND   ATTESTATION   OF  WILLS. 

§  26.  The  Will  is  Ambulatory 22 

§  27.  Wills  distinguished  from  Conveyance  of  Future  Interests      .    .  22 

§  28.  Conditional  Wills 23 

§  29.  Joint  and  Mutual  Wills 24 

§  30.  Joint  WiUs  as  Contracts 24 

§  31.  Separate  Wills  in  Pursuance  of  Contract 25 

§  32.  Contracts  to  make  Particular  Provision  by  Will 26 

§  33.  No  Formahty  as  to  Will's  Contents 26 

§  34.  Nor  as  to  Writing  Material  or  Language 27 

§  35.  The  Signature 27 

§  36.  Attestation 29 

§  37.  Change  in  Law  as  to  Testamentary  FormaUties 30 

§  38.  Competency  of  Attesting  Witnesses 31 

§  39.  Holographic  Wills 32 

§  40.  Nuncupative  Wills 33 

§  41.  Formal  Requisites  for  Nuncupative  Wills 33 

§  42.  Wills  of  Soldiers  and  Mariners 35 

§  43.  Codicils 35 


TABLE    OF   CONTEXTS.  IX 
CHAPTER  VI. 

OF   THE    REVOCATION   OF   WILLS. 

Page 

§  44.  Methods  of  Revocation 37 

§  4.5.  Revocation  by  Cancelling,  etc 37 

§  46.  Dependent  Relative  Revocation 39 

§  47.  Partial  Revocation  by  Cancelling 39 

§  48.  Revocation  by  Subsequent  Will 40 

§  49.  Revival  of  a  Prior  Will  by  Revocation  of  a  Later  Will    ....  41 

§  50.  What  Property  passes  Under  Will 42 

§  51.  Revocation  by  Inconsistent  Disposition  of  the  Testamentary 

Gift 43 

§  52.  Revocation  by  Marriage  of  Feme  Sole 43 

§  53.  Revocation  by  Marriage  of  Males  and  Birth  of  Issue      ....  43 

§  54.  Con.sequence  of  Failure  to  provide  for  Issue 45 

§  55.  Repubhcation  of  Wilis 45 


BOOK   TWO. 

OF    GIFTS    EXECUTED    IX    AXTICIPATIOX    OF   IMMEDIATE 

DEATH. 


CHAPTER  VII. 

DONATIOXES  MORTIS  CAUSA. 

§  56.  Definition  of  the  Term 47 

§  57.  Apprehension  of  Death      48 

§  58.  Delivery  of  the  Thing  Given 48 

§  59.  Parting  with  Control      49 

§  60.  Delivery  to  Person  other  than  Beneficial  Donee 50 

§  61.  Revocation  by  the  Living  Donor     .    .        50 

§  62.  Revocation  by  Law 51 

§  63.  Liability  of  the  Gift  to  Donor's  Creditors      51 

§  64.  Vahdity  of  the  Gift  as  against  the  Donor's  Family 51 


PART   II. 
Of  the  Devolution  by  Operation  of  Law. 

CHAPTER  VIII. 

DESCENT   AND   DISTRIBUTION    OF   PROPERTY   OF   INTESTATES. 

65.  Principles  Governing  Distribution 53 

66.  Sources  of  American  Law  of  Descent  and  Distribution   ....     54 

67.  The  Degrees  of  Relationship 54 


X  TABLE    OF    COXTEXTS. 

Page 

§  6S.  Collateral  Relationship  under  Canon  and  Civil  Law 55 

§  69.  Representation 55 

§  70.  Statutory  ModiScation  of  Svstem  of  Distribution 57 

§71.  Heirs  of  "the  Half  Blood     .  ' 58 

§  72.  Posthumous  Children 58 

§  73.  Adopted  Children 59 

§  74.  Illegitimate  Children      60 

§  75.  Aliens  as  Heirs 61 

§  76.  Ancestral  Estates 61 

§  77.  Disinheritance  of  Heir  or  Devisee  who  kills  Ancestor 62 

§  78.  What  Law  governs  Descent  and  Distribution 63 


CHAPTER   IX. 

PROVISIONAL   ALIMONY    OF    THE    FAMILY. 

§  79.  Nature  of  Allowance  to  Famih- ,  64 

§  80.  The  Extent  and  ^Slode  of  Allowance 65 

§  8L  Rules  governing  the  Amount  of  the  Allowance 65 

§  82.  To  what  Extent  Liberality  should  govern  the  Court 66 

§  S3.  The  Allowance  with  Respect  to  Solvency  or  Insolvency  of  the 

Estate 66 

§  84.  Separate  Property  of  the  Widow  affecting  the  Allowance   ...  66 

§  85.  The  Will  as  barring  the  Allowance 67 

§  86.  How  affected  bj-  Marriage  Settlements 67 

§  87.  How  affected  by  Liens  or  Preferred  Debts  of  the  Decedent  .    .  68 

§  88.  When  the  Allowance  takes  Effect 68 

§  89.  What  constitutes  a  Family 69 

§  90.  Allowance  to  Widow  Alone 69 

§  9L  Allowance  to  the  Children  Alone 70 

§  92.  Out  of  what  Property  to  be  Allowed 70 

§  93.  Time  and  Procedure  to  obtain  the  Allowance 71 

§  94.  Additional  Allowance 72 

§  95.  WhsLt  Law  governs 72 

§  96.  Scope  of  the  Subject 72 


CHAPTER   X. 

EXEMPTION   OF   THE    HOMESTEAD. 

§    97.  Xature  of  the  Homestead  Right  of  the  Sur^-iving  Family     .    .  74 

§    98.  What  Tenement  constitutes  the  Homestead 75 

§    99.  Homestead  Rights  of  the  Widow 76 

§  100.  The  Homestead  as  affected  by  the  Widow's  Dower 77 

§  101.  The  Widow's  Right  to  sell  the  Homestead 77 

§  102.  Abandonment  or  Divorce  affecting  Homestead 77 

§  103.  Homestead  Rights  of  Minor  Children 78 

§  104.  Homestead   Rights  of  Widow  and  Children  as   affected  bj' 

Encumbrances 79 


TABLE    OF   CONTEXTS.  XI 

Page 
§  105.  Homestead  Rights  as  affected  by  Inconsistent  Disposition  of 

the  Estate  bj-  the  Deceased  OwTier ^9 

§  106.  Homestead  Rights  as  affected  b}'  Administration 80 

§  107.  Procedure  in  Probate  Court  in  Setting  out  the  Homestead  .  .  81 
§  108.  The  Rights  and  Burdens  connected  with  Enjoj-ment  of  the 

Homestead 81 

§  109.  "VMiat  Law  controls 82 


CHAPTER   XL 

DO'tt'ER. 

110.  Dower  in  Realty 83 

111.  Dower  in  Personalty 83 

112.  Election  between  Dower  and  Devise 84 


CHAPTER  XII. 

PARTXERSHIP    ESTATES. 

§  113.  Results  of  Death  of  a  Partner  at  Common  Law 88 

§  114.  Results  of  Death  of  a  Partner  in  Equity      88 

§  11.5.  The  Right  of  Surviving  Partners  to  prefer  Creditors  ....  89 

§  116.  Surviving  Partners  Continuing  the  Business 89 

§  117.  Continuing  the  Interest  of  Deceased  Partner  in  Business     .    .  90 

§  118.  Rights  of  Partnership  Creditors 92 

§  119.  Rights  of  Representatives  of  the  Deceased  Partner 93 

§  120.  Distribution  of  Partnership  Effects 93 

§121.  Good  Will  of  Partnership 94 

§  122.  The  Real  Estate  of  the  Partnership 95 

§  123.  History  of  the  ISIissouri  Statute  as  T^sical  of  Modern  Partner- 
ship Administration 97 


CHAPTER   XIII. 

ESCHE.^TS. 

§  124.  Devolution  of  Property  in  Default  of  Heirs 99 

§  125.  Escheat  at  Common  Law      100 

§  126.  Escheats  under  the  Statutes  of  the  Several  States 100 

§  127.  Need  of  Inquest  of  Office  under  Statutes       101 

§  128.  An  Official  as  Representative  of  the  State 101 

§  129.  Escheated  Estate  Subject  to  Trusts 101 

§  130.  Subsequent  Recovery  by  Heir  from  the  State 102 

§  131.  Administration  of  Escheated  Estates      102 


xn  TABLE    OF   CONTENTS. 


TITLE   TWO. 
OF  THE  IXSTROIENTALITIES  EFFECTING  THE  DEVOLUTION. 

Page 
§  132.  Tribunals  and  Officers  eniploj-ed  by  the  Law  to  accomplish  the 

Devolution 103 

PART   I. 

Of  the  Tribunals  Controlling  the  Administration  of  the  Estates 
of  Deceased  Persons. 

CHAPTER  XIV. 

PROBATE    POWERS    AS    EXISTING    AT    COMMON    LAW    UNDER    ENGLISH 
STATUTES. 

§  133.  Origin  of  the  Ecclesiastical  Jurisdiction  over  Probate  of  Wills .  104 

§  134.  Origin  of  Administration  in  England 105 

§  13.5.  Powers  of  Ecclesiastical  Courts  in  England 106 

§  136.  Probate  Jurisdiction  in  Other  English  Courts 108 


CHAPTER  XV. 

NATURE  OF  PROBATE  COURTS  IN  AMERICA. 

§  137.  Origin  of  Probate  Courts  in  America 110 

§  138.  American  Statutes  the  only  Source  of  Probate  Powers  in  the 

States Ill 

§  139.  Their  Dignity  as  Courts 112 

§  140.  Their  Powers  as  Judicial  Tribunals 113 

§  141.  Conclusiveness  of  their  Judgments  in  Collateral  Proceedings  113 

§  142.  How  far  Probate  Courts  may  correct  their  Judgments    ...  116 

§  143.  Entering  Judgment  nunc  pro  tunc 116 

§  144.  Proceeding  in  Rem  and  in  Personam 117 

§  145.  Method  of  Procedure  in  Probate  Courts 119 


CHAPTER  XVI. 

OF  THE   StJBJECT-MATTER  WITHIN  THE   JURISDICTION  OF  PROBATE    COURTS. 

§  146.  Scope  of  the  Jurisdiction 121 

§  147.  Jurisdiction  as  limited  to  the  Devolution  of  Property  on  the 

Owner's  Death 121 

§  148.  Liabilities  arising  from  Administration 122 

§  149.  Adjudication  of  Claims  against  the  Deceased 123 

§  150.  Incidental  Powers  conferred  by  Necessary  Implication  .    .    .     123 


TABLE   OF   CONTENTS.  XIU 

Page 

§  151.  Power  to  construe  Wills  in  Probate  Court 123 

§  152.  Construing  Wills  in  Equity 124 

§  153.  Exclusive  and  Concurrent  Jurisdiction 125 

§  154.  Probate  Jurisdiction  of  Federal  Courts 126 


CHAPTER  XVII. 

DOMICILIARY   AND   ANCILLARY   JURISDICTION. 

§  155.  Authority  of  Representatives  limited  to  the  State  granting  it  128 

§  156.  Administration  of  Same  Succession  in  Different  Countries  .  128 
§  157.  Jurisdiction  over  Property  removed  to  Another  Country  after 

Owner's  Death 130 

§  158.  Legal  Status  of  Foreign  Administrators 131 

§  159.  Validity  of  Voluntary  Payment  to  Foreign  Administrator      .  132 

§  160.  Extra-territorial  Validity  of  Title  once  vested 132 

§  161.  Statutory  Authority  of  Foreign  Executors  and  Administrators  134 

§  162.  Liability  of  Foreign  Administrators 134 

§  163.  Procedure  governed  by  the  Law  of  the  Forum 135 

§  164.  Payment  of  Debts  and  Distribution  to  Non-Residents    .    .    .  135 

§  165.  Real  Estate  governed  by  the  Lex  Rei  Sitae 137 


PART   II. 
Of  the  Office  of  Executors  and  Administrators. 

CHAPTER  XVIII. 

NATURE  OF  THE  TITLE  VESTING  IN  EXECUTORS  AND  ADMINISTRATORS. 

166.  Conduit  of  the  Inheritance 139 

167.  Distinction  between  Executors  and  Administrators     ....  139 

168.  When  the  Title  vests  in  the  Executor,  and  when  in  the  Ad- 

ministrator    140 

169.  Relation  of  the  Appointment  to  the  Time  of  Death    ....  141 

170.  Title  of  Executors  and  Administrators  in  Auter  Droit    .    .    .  142 

171.  Power  of  Alienation 142 

CHAPTER  XIX. 

OP  SPECIAL   AND   QUALIFIED   ADMINISTRATORS. 

172.  Administrators  -cum  Testamento  Annexe 143 

173.  Administrators  de  Bonis  Non 143 

174.  Public  Administrators .  145 

175.  Administrators  Pendente  Lite 145 

176.  Temporary  and  Limited  Administration 146 


XIV  TABLE   OF   CONTENTS. 

TITLE   THREE. 
OF  THE  DEVOLUTION  TO  THE  LEGAL  REPRESENTATIVES. 

PART   I. 
Of  the  Estate  without  Official  Representation. 

CHAPTER  XX. 

WHAT  MAT  BE  DONE  BEFORE  PROBATE  OR  GRANT  OF  LETTERS. 

Page 
§  177.  To  whom  the  Real  and  to  whom  the  Personal  Property  de- 
scends     149 

§  178.  Authority  of  Executors  before  Grant  of  Letters  Testamentary     150 
§  179.  Authority  of  Administrators  before  Grant  of  Letters  ....     150 

CHAPTER  XXI. 

OF  EXECUTORS   DE   SON   TORT. 

§  ISO.  Extent  of  Doctrine  of  Executor  de  son  Tort  in  America   .    .  152 

§  181.  Executor  de  son  Tort  —  how  constituted 153 

§  182.  The  Liability  of  the  Executor  de  son  Tort 154 

§  183.  Effect  of  Appointment  of  Executor  de  son  Tort  upon  his 

Previous  Acts 154 

CHAPTER  XXII. 

OF   THE   NECESSITY   OF   OFFICIAL   ADMINISTRATION. 

§  184.  Why  Administration  is  Necessary 156 

§  185.  Administration  not  Necessary  under  Certain  Circumstances 

in  some  States 150 

PART   II. 
Of  the  Induction  to  the  Office  of  Executor  and  Administrator. 

CHAPTER  XXIII. 

OF   THE    PRELIMINARIES   TO   THE    GRANT   OF   LETTERS   TESTAMENTARY     AND 
OF   ADMINISTRATION. 

§  186.  Local  Jurisdiction  to  grant  Letters  Testamentary  and  of  Ad- 
ministration      159 

§  187.  Jurisdiction  over  Estates  of  Deceased  Non-Residents     .    .    .     160 


TABLE    OF   CONTEXTS.  XV 

Page 

§  188.  Claims  for  injury  resulting  in  Death  as  Asset 162 

§  189.  What  constitutes  Domicile  or  Residence 163 

§  190.  Proof  of  Death 164 

§  191.  Administration  on  the  Estates  of  Living  Persons 165 

§  192.  Administration  on  Estates  of  Absent  Persons 166 


CHAPTER  XXIV. 

OF  THE  PROBATE  OF  THE  WILL. 

§  193.  Necessity  for  Probate 167 

§  194.  Validity  of  Probate  in  Probate  Courts 167 

§  195.  Production  of  the  Will  for  Probate      167 

§  196.  Jurisdiction  for  Probate  in  Common  and  Solemn  Form  .    .    .  169 

§  197.  Jurisdiction  over  Probate  of  Lost  Wills      169 

§  198.  Method  of  Proof  in  Common  Form 169 

§  199.  The  Probate  in  Solemn  Form 171 

§  200.  Contest  of  Probate 171 

§  201.  Proof  when  Testimony  of  Subscribing  Witness  cannot  be 

obtained 173 

§  202.  Witnesses  disqualified  by  Interest 174 

§  203.  Proof  of  the  Testator's  Sanity      175 

§  204.  Proof  of  Lost  Wills 175 

§  205.  Proof  of  Wills  in  Part 177 

§  206.  Probate  in  Fac-simile 178 

§  207.  Testator's  Declarations  as  Evidence  in  Probate  of  Will  .    .    .  179 

§  208.  Admissions  by  Beneficiaries  under  Will      180 

§  209.  Wills  Proved  in  Foreign  Jurisdiction 181 

§  210.  Revocation  of  Probate 183 

§  211.  Effect  of  Probate 184 


•     CHAPTER  XXV. 

OF  THE  GRANT  OF  LETTERS  TESTAMENTAKT. 

§  212.  How  the  Executor  is  Constituted 186 

§  213.  Residence  as  Qualification  of  Executor 187 

§  214.  Infancy  as  disqualifying  Executor 187 

§  215.  Coverture  as  disqualifying  Executrix      187 

§  216.  Mental  Incapacity,  Immorality,  and  other  Disqualifications 

for  Executorship 188 

§  217.  Acceptance  or  Refusal  of  Executorship 189 

CHAPTER   XXVI. 

LETTERS   OF   AX)MINISTR.\TION. 

§  218.  Principles  governing  the  Grant  of  Letters  of  Administration     191 
§  219.  Husband's  Right  to  Appointment 192 


XVI  TABLE   OF   CONTENTS. 

Pagb 

§  220.  Widow's  Right  to  Appointment 193 

§  221.  Right  of  Next  of  Kin  to  Appointment 194 

§  222.  Right  of  Creditors  to  Appointment 194 

§  223.  Right  of  Pubhc  Administrator  to  ackninister 195 

S  224.  Disqualifications  excluding  from  Appointment  as  Adminis- 
trator      195 

§  225.  Considerations  governing  Discretion       197 

§  226.  Renunciation  of  the  Right  to  Administer      198 

§  227.  Effect  of  Renunciation  or  Waiver 199 

§  228.  Administrators  cum  Testamento  Annexo 200 

§  229.  Administration  of  Estates  of  Non-Residents 201 

§  230.  Administrators  de  Bonis  Non 202 

§  231.  Administrators  with  Limited  Powers 202 


CHAPTER  XXVII. 

OF   THE   ADMINISTRATION   BOND. 

§  232.  Origin  of  the  Law  requiring  Administration  Bonds 203 

§  233.  Bonds  of  Executors 203 

§  234.  Power  of  Court  to  order  Bond 204 

§  235.  Circumstances  rendering  Bond  Necessary 204 

§  236.  Invalidity  of  Administration  without  Bond 205 

§  237.  When  Additional  Bond  may  be  ordered 205 

§  238.  Nature  of  Liability  of  Sureties 2C6 

§  239.  Ordering  Further  Bond      206 

§  240.  Contribution  between  Different  Sureties  in  the  Same  Estate  208 

§  241.  Bonds  given  in  Successive  Trustee  Capacities 208 

§  242.  Technical  Execution  of  the  Bond 209 

§  243.  Amount  of  the  Penalty      209 

§  244.  Joint  or  Separate  Bonds 210 

§245.  Approval  and  Custody  of  Bonds      .    .    .    .• 211 

§  246.  Special  Bonds     211 


CHAPTER  XXVIII, 

OF    THE    PROCEDURE    IN    OBTAINING    LETTERS    AND    QUALIFYING    FOR  THE 

OFFICE. 

§  247.  The  Petition  for  Grant  of  Letters,  Testamentary  or  of  Ad- 
ministration       212 

§  248.  Notice  to  Parties  entitled  to  administer 213 

§  249.  Nature  of  the  Proceeding      214 

§  250.  Nature  of  the  Decree,  and  its  Authentication 215 

§  251.  Oath  of  Office      215 


TABLE   OF   CONTENTS.  XVU 


CHAPTER  XXIX. 

ON  THE  REVOCATION  OF  LETTERS  TESTAMENTARY  AND  OF  ADMINISTRATION. 

§  252.  Conclusiveness  of  the  Decree  or  Order  granting  Letters  .    .  216 

§  253.  Jurisdiction  to  revoke  Letters 216 

§  254.  Recall  of  Letters  granted  without  Authority  in  the  Court     .  217 

§  255.  Theory  of  Removal  for  Cause 218 

§  256.  What  Misconduct  justifies  Revocation  of  Letters 219 

§  257.  Who  may  mcve  for  Revocation 219 

§  258.  Resignation  of  Executors  and  Administrators 221 

§  259.  Consequences  of  the  Revocation  of  Letters 221 

PART   III. 

Of  the  Property  to  which  the  Title  of  Executors  and  Administrators 

Extends. 

CHAPTER  XXX. 

OF   PROPERTY   IN   POSSESSION. 

§  260.  Heirlooms  not  Personalty 224 

§  261.  Disposition  of  the  Corpse      224 

§  262.  Joint  Property 225 

§  263.  Real  Estate      ,*  225 

§  264.  Chattels  Real '  225 

§  265.  Chattels  Real  of  the  Wife 226 

§  266.  Mortgages 226 

§  267.  Chattels  Animate 227 

§  268.  Chattels  Vegetable [    [  227 

§  269.  Emblements 227 

§  270.  Fixtures,  as  between  Heir  and  Personal  Representative     .    .  229 

§  271.  Fixtures  as  between  Devisee  and  Personal  Representative  .  231 
§  272.  Fixtures  as  between  Personal  Representative  of  Life  Tenant 

and  Remainderman 231 

§  273.  Separate  Property  of  the  Wife 232 

§  274.  Ante-Nuptial  Settlements 232 

§  275.  Post-Nuptial  Settlements      233 

§  276.  The  Wife's  Savings  from  Separate  Trade,  Pin-Money,  Gifts, 

etc 233 

§  277.  The  Wife's  Paraphernalia     234 


CHAPTER  XXXI. 

TITLE    OF   EXECUTORS    AND    ADMINISTRATORS   TO    CHOSES    IN   ACTION. 

278.  Survival  of  Actions  at  Common  Law 235 

279.  Reason  of  the  Rule 235 


XVlll  TABLE    OF    CONTENTS. 

Pagd 

§  280.  American  Statutes  regulating  the  Survival  of  Actions     .    .  237 

§  281.  Actions  for  Injury  to  Personalty      237 

§  282.  Actions  concerning  Realty 238 

§  283.  Actions  for  Injuries  to  the  Person 239 

§  284.  Actions  for  Injuries  resulting  in  Death  do  not  lie  at  Common 

Law 239 

§  285.  Suit  for  Death  Loss  under  Law  of  Other  State 241 

§  286.  Property  conveyed  by  Decedent  in  Fraud  of  Creditors  .    .    .  241 

§  287.  Annuities  and  Rent  Charges 242 

§  288.  Apprentices  and  Servants      243 

§  289.  Copyrights  and  Patents 243 

§  290.  Rents 244 

§  291.  Apportionment  between  Ijife  Tenant  and  Remainderman  .    .  24.5 

§  292.  The  Wife's  Choses  in  Action 245 

§  293.  Actions  accruing  to  the  Representative,  officially  or  individu- 
ally      246 


TITLE   FOUR. 

OF  THE  DUTIES  OF  THE  PERSONAL  REPRESENTATIVE    IN 
RESPECT   OF   THE   ESTATE. 


PART   I. 
Of  Acquiring  Possession  of  the  Estate. 

CHAPTER   XXXII. 

WHAT   CONSTITUTES   ASSETS. 

§  294.  Meaning  of  the  Term  Assets 249 

§  295.  Assets  not  Possessed  by  the  Decedent 251 

§  296.  Accretions,  Interest,  Rents,  Profits 252 

§  297.  Property  in  Foreign  Jurisdiction      253 

§  298.  Property  lost  through  Administrator's  Negligence  as  Assets  .  253 

§  299.  Debts  of  Executors  or  Administrators  as  Assets 254 

§  300.  Property  in  Auter  Droit  not  Assets 255 

§  301.  Legal  and  Equitable  Assets 255 

§  302.  Personal  and  Real  Assets 256 

CHAPTER  XXXIII. 

OF   THE    INVENTORY   AND   APPRAISAL. 

§  303.  Office  and  Necessity  of  the  Inventory 257 

§  304.  Within  what  Time  the  Inventory  must  be  filed 257 

§  305.  What  Property  must  be  inventoried 258 

§  306.  Details  of  the  Inventory 260 


TABLE   OF   CONTENTS.  XIX 

Page 

§  307.  Indication  of  the  Value  of  Assets 261 

§  308.  Appraisement  of  the  Goods 261 


CHAPTER   XXXIV. 

DUTIES   OF  EXECUTORS   AND   ADMINISTRATORS   IN   TAKING   CHARGE   OP  THE 

ESTATE. 

§  309.  Duty  of  Administrators  to  take  Estate  into  Possession  .    .    .  263 

§  310.  Right  of  Administrator  paramount  to  Heir  or  Legatee    .    .    .  264 
§  311.  Their  Duty  to  prosecute  and  defend  Actions  pending  by  or 

against  the  Estate 265 

§  312.  Actions  to  recover  or  defend  the  Estate 265 

§  313.  Summary  Proceedings  to  recover  Assets 266 

PART   II. 
Of  the  Management  of  the  Estate. 

CHAPTER  XXXV. 

OF   THE    DUTIES   OF   EXECUTORS    AND    ADMINISTRATORS    WITH    RESPECT   TO 
PERSONAL    PROPERTY. 

§  314.  Compounding  with  Debtors 269 

§  315.  Arbitration 270 

§  316.  Protest  and  Notice  respecting  Negotiable  Paper 270 

§  317.  Duties  in  Relation  to  the  Contracts  and  Trade  of  the  De- 
ceased     272 

§  318.  Preserving  the  Property 274 

§  319.  Taxes  on  Personalty 275 

§  320.  The  Succession  Tax 277 

§  321.  Transfer  of  Personalty  by  Personal  Representative  at  Common 

Law 279 

§  322.  Restraint  on  Power  of  Sale  by  Statute 280 

§  323.  Sale  of  Perishable  Property 280 

§  324.  Method  and  Notice  of  Sale 281 

§  325.  Terms  and  Method  of  Payment 282 

§  326.  Purchase  of  Personalty  by  the  Executor  or  Administrator 

himself 283 

§  327.  Record  and  Report  of  the  Sale 283 

§  328.  Duties  in  Respect  to  the  Investment  and  Custody  of  Funds  .  283 


CHAPTER  XXXVI. 

OF  THE   MANAGEMENT   OF   THE   REAL   PROPERTY. 

§  329.  Probate  Control  over  Realty  at  Common  Law  and  under 

Statutes 287 


XX  TABLE   OF   CONTENTS. 

Page 

§  330.  I.  The  Common  Law  almost  wholly  abrogated 288 

§  331.  II.  States  giving  Statutory  Powers  to  the  Personal  Repre- 
sentative    289 

§  332.  III.  Power  over  Realty  through  Probate  Court 290 

§  333.  Power  over  Real  Estate  conferred  by  Will 290 

§  334.  Power  given  in  a  Will  not  following  the  Office  of  the  Executor  292 
§  335.  Statutes  Regulating  the  Power  over  Real  Estate  conferred  by 

Will       293 

§  336.  Constructive  or  Equitable  Conversion 293 

§  337.  Duties  and  Liabilities  arising  to  Executors  and  Administra- 
tors in  Respect  of  Real  Estate 295 

§  338.  Power  to  Mortgage  the  Real  Estate 296 


PART  in. 

Of  the  Privity  among  Executors  or  Administrators  of  the  Same 

Estate. 


CHAPTER  XXXVII. 

tJNITT  OF  ESTATE  AMONG  EXECUTORS  AND  ADMINISTRATORS  OP  THE    SAME 

DECEDENT. 

§  339.  Power  of  Co-executors  to  bind  Each  Other  by  Acts  of  Ad- 
ministration   298 

§  340.  The  Liability  of  one  Co-executor  or  Co-administrator  for  the 

Acts  of  Another 298 

§  341.  Remedies  in  Protection  of  Co-administrators  against  Liabil- 
ity for  One  Another's  Acts 299 

§  342.  Executor's  Executor  Representing  the  Executor's  Testator  .  300 

§  343.  Succession  in  the  administration  at  Common  Law 300 

§  344.  Administration  de  bonis  non  under  American  Statutes   .    .    .  302 

§  345.  Privity  between  Successive  Administrators 303 

TITLE   FIVE. 

OF  THE  PAYMENT  OF  DEBTS  BY  EXECUTORS  AND  ADMIN- 
ISTRATORS. 

§  346.  Origin  of  the  Common-law  System  of  Paying  Debts  of  De- 
ceased Persons 305 


PART   I. 

Of  the  Priority  of  Demands  against  the  Estates  of  Deceased  Persons. 

§  347.  Distinction  between  the  Debts  of  the  Decedent  and  Liabili- 
ties contracted  by  the  Personal  Representative 306 


TABLE    OF   CONTENTS.  XXI 


CHAPTER  XXXVIII. 

OF  THE   PAYMENT  OF  LIABILITIES  ARISING  AFTEE  THE  DEATH  OF  THE 

DECEDENT. 

Page 
§  348.  Funeral  Expenses  allowable  as  Incidental  to  the  Adminis- 
tration    307 

§  349.  Amount  allowed  for  Funeral  Expenses 308 

§  350.  What  items  are  allowed  as  Funeral  Expenses 308 

§  351.  Expenses  of  Last  Illness  when  preferred  to  Debts 309 

§  352.  Expenses  necessary  in  the  Administration  of  the  Estate     .    .  309 

§  353.  Provisional  Alimony  for  the  Surviving  Family 310 


CHAPTER  XXXIX. 

OF   THE   PRIORITY   OF   DEBTS   CREATED   BY   THE   DECEDENT. 

§  354.  Priority  of  Debts  at  Common  Law 311 

§  355.  Expenses  of  Funeral  and  Last  Illness  as  Debts 311 

§  356.  Debts  to  the  Government  of  the  United  States 312 

§  357.  Debts  to  the  State  and  State  Corporation 312 

§  358.  Debts  owing  in  a  Fiduciary  Capacity 313 

§  359.  Judgments  against  the  Decedent  in  his  Lifetime 313 

§  360.  Debts  by  Specialty 314 

§  361.  Rent      314 

§  362.  Wages 315 

§  363.  Simple  Contract  Debts      315 

PART   II. 
Of  the  Common-law  System  of  Paying  Debts  of  Deceased  Persons. 

§  364.  Payment  of  Debts  according  to  their  Priority      316 

CHAPTER  XL. 

OF   THE   PAYMENT  OF   DEBTS   AT   COMMON   LAW. 

§  365.  Common-law  Preference  among  Creditors  of  Equal  Degree   .  317 

§  366.  Right  of  Retainer  at  Common  Law 317 

§  367.  Consequence  of  Paying  Legatee  before  Notice  of  Debt   .    .    .  318 
§  368.  Defenses  against  Actions  for  Debts  of  the  Deceased    ....  319 
§  369.  Effect  of  Admissions  and  Promises  by  Executors  or  Adminis- 
trators    321 

§  370.  Enforcing  Judgments  de  bonis  testatoris  at  Common  Law  .    .  322 

§  371.  Liability  of  Executors  and  Administrators  in  Equity  ....  323 


XXU  TABLE    OF   CONTENTS. 


PART   III. 

Of  the  System  of  Paying  Debts  of  Deceased  Persons  under  American 

Statutes. 

Page 
§  372.  Contrast  between  Common  Law  and  American  System  .  .  324 
§  373.  Notice  to  Creditors  of  the  Grant  of  Letters 325 


CHAPTER  XLI. 

OF  THE   EXHIBITION    OF    CLAIMS  TO,   AND    THEIR  ALLOWANCE   BY,    THE  EX- 
ECUTOR  OR    ADMINISTRATOR. 

§  374.  Creditors  required  to  exhibit  Claims 326 

§  375.  What  constitutes  a  Sufficient  Exhibition 320 

§  376.  Time  for  the  Exhibition  of  Claims 328 

§  377.  Affidavit  of  Creditors  necessary 328 

§  378.  Allowance  or  Rejection  of  Claims  by  the  Administrator     .    .  329 


CHAPTER  XLII. 

OF    ESTABLISHING    CLAIMS    AGAINST    THE    ESTATES    OF    DECEASED    PERSONS. 

§  379.  When  Claims  may  be  established  in  Probate  Court     ....  330 

§  380.  What  Actions  and  Defences  are  triable  in  Probate  Courts      .  331 

§  38L  Claims  against  Estates  of  Deceased  Married  Women      .    .    .  332 

§  382.  Claims  not  matured 332 

§  383.  Contingent  Claims 333 

§  384.  Claims  of  Executors  and  Administrators 334 

§  385.  Claims  of  Relatives 334 

§  386.  Notice  to  the  Administrator  of  Claims  to  be  established    .    .  335 

§  387.  Set-offs  in  Probate  Courts 336 

§  388.  Claimants  as  Witnesses 337 


CHAPTER  XLIIL 

OF   THE    TIME    WITHIN    WHICH    CLAIMS    MUST   BE    ESTABLISHED. 

§  389.  Time  of  establishing  Claims  with  Reference  to  their  Rejection 

by  the  Administrator 338 

§  390.  Special  Limitation  of  Time  to  establish  Claims  against  Estates     338 
§  39L  Application  of  the  General  Statute  of  Limitations  to  Executors 

and  Administrators -. 339 

§  392.  Application  of  the  Statute  of  Non-claim 340 

§  393.  Effect  of  proving  Claims  after  the  Primary  Period  fixed  there- 
for bv  Statute 342 


TABLE    OF   CONTENTS.  XXlil 


CHAPTER  XLIV. 

OF    CLAIMS    AGAINST    ESTATES    SPECIALLY    ADMINISTERED    AS     INSOLVENT. 

Page 
§  394.  Special  Administration  for  Insolvency  in  some  States  .    .    .     344 

§  395.  How  Estates  are  declared  Insolvent 344 

§  396.  Special  Administration  of  Insolvent  Estates      345 

§  397.  Time  within  which  Claims  must  be  presented  against  Insol- 
vent Estates 346 


CHAPTER  XLV. 

OP   CLAIMS   SECURED   BY   COLLATERAL. 

§  398.  Rights  of  Creditors  holding  Collateral  Security  to  Assets  of 

Insolvent  Estates 347 

§  399.  Actions  to  foreclose  Collateral  Securities 347 

CHAPTER  XLV  A. 

OF  THE   PAYMENT   OF   DEBTS   WHEN   ESTABLISHED. 

§  400.  Nature  and  Effect  of  the  Allowance  or  Judgment  establish- 
ing Claims 349 

§401.  The  Order  or  Decree  to  pay  Debts 350 

§  402.  Enforcement  of  the  Order  or  Decree  to  pay  Debts 351 

TITLE  SIX. 

OF  LEGACIES  AND  DEVISES. 

§  403.  Distinction  between  Devises  and  Legacies 353 

PART   I. 
Of  Ascertaining  the  Meaning  of  Wills. 

CHAPTER   XLVI. 

OF   THE    GENERAL   RULES   APPLIED   IN   EXPOUNDING  WILLS. 

§  404.  Ascertaining  the  Testator's  Intention 354 

§  405.  Rule  requiring  the  Several  Parts  of  a  Will  to  be  construed 

together 355 

§  406.  General  Intent  Controlling  the  Particular  Intent 356 

§  407.  Construction  of  terms  repeated  in  the  Will 356 

§  408.  Rule  allowing  Words  and  Limitations  to  be  transposed,  sup- 
plied, or  rejected 357 


Xxiv  TABLE   OF   CONTENTS. 

Page 

§  409.  Precatory  Words 357 

§  410.  Estates  by  Implication 358 

§  411.  From  what  Period  the  Will  speaks  in  Respect  of  the  Law 

governing  it 359 

§  412.  From  what  Period  the  Will  speaks  in  Respect  of  the  Testator's 

Intention      360 

§  413.  Extrinsic  Evidence  in  Aid  of  Construction 361 

§  414.  Testamentary  Donees  as  Classes 303 

§  415.  Classes  designated  by  Technical  Terms 364 


CHAPTER  XLVII. 

TESTAMENT.\RY   DISPOSITIONS   CONTROLLED   BY   PUBLIC   POLICY. 

§  416.  Gifts  for  Immoral  or  Superstitious  Purposes 368 

§  417.  Gifts  prohibited  by  the  Statute  of  Mortmain 369 

§  418.  Corjiorations  as  Testamentary  Donees 370 

§  419.  Corporations  as  Donees  in  Trust 371 

§  420.  Rule  against  Perpetuities 371 

§  421.  Accumulation  of  the  Income 373 

§  422.  Gifts  to  Charitable  Uses 374 

§  423.  Force  of  the  English  Statute  of  Charitable  Uses  in  America  .  375 

§  424.  Charitable  Uses  upheld  where  other  Trusts  fail  for  Indefinite- 

ness 375 

§  425.  Charitable  Trusts  continue  Indefinitely 377 

§  426.  The  Doctrine  of  Cij  Pres 377 

§  427.  Bequests  for  Masses  for  the  Dead 378 

PART   II. 
Of  Caxr3ring  Wills  into  Effect. 

CHAPTER  XLVIII. 

LEGAL  INCIDENTS  AFFECTING  DEVISES   AND   LEGACIES. 

I  428.  Lapse  of  Testamentary  Gifts  by  the  Death  of  the  Donee  before 

that  of  the  Testator 380 

§  429.  Statutory  Exceptions  in  Favor  of  Representatives  of  Deceased 

Legatees 381 

§  430.  The  Doctrine  of  Lapse  as  affected  by    the  Contingent  or 

Vested  Character  of  the  Devise  or  Legacy 382 

§  431.  Devolution  of  Void  and  Lapsed  Devises  and  Legacies  .  .  .  382 
§  432.  The  Devolution  of  Void  and  Lapsed  Devises  and  Legacies  as 

affected  by  Statutes 383 

§  433.  Remainders,  and  Executory  Devises  and  Bequests 384 

§  434.  Devises  and  Legacies  on  Condition 386 

§  435.  Repugnant  Conditions 387 

§  436.  Spendthrift  Trusts      388 


TABLE    OF   CONTENTS.  XXV 

Page 

§  437.  Bequests  Conditioned  on  Religious  Qualifications 388 

§  438.  Condition  for  Separate  Life  of  Married  Couple 389 

§  439.  Condition  against  Disputing  the  Will 389 

§  440.  Conditions  in  Restraint  of  Marriage 389 

§  441.  Classification  of  Legacies 391 

§  442.  Cumulative,  Repeated,  and  Substituted  Legacies 393 

§  443.  Ademption  and  Satisfaction  of  Legacies  by  Act  of  the  Testator  393 

§  444.  Legacies  in  Satisfaction  of  Debts 394 

§  44o.  Ademption  of  Legacies  given  as  Portions 395 

§  446.  Admissibility  of  Parol  Evidence  on  Questions  of  Ademption  .  396 
§  447.  Statutory  Provisions  affecting  Ademption  or  Satisfaction  of 

Legacies 396 


CHAPTER  XLIX. 

OF   THE   SATISFACTION   OF   LEGACIES   BY   THE   EXECUTOR. 

§  448.  Preference  of  Creditors  over  Legatees 398 

§  449.  Order  in  which  Legacies  abate      398 

§  4.50.  Executor's  Assent  to  Devises  and  Legacies 400 

§  45L  Time  for  Paying  or  Delivering  Legacies 401 

§  452.  Time  for  Paying  Legacies  fixed  by  Statutes 402 

§  453.  Payment  of  Bequests  for  Life  with  Remainder  over    ....  402 

§  454.  Resort  to  General  Estate  when  Annuity  Fund  fails     ....  404 

§  455.  Profits  as  Constituting  Income  for  Life  Tenant 405 

§  456.  Relative  Rights  of  Life  Tenants  and  Remaindermen  to  Divi- 
dends of  Stock 405 

§  457.  Interest  on  Legacies 406 

§  458.  Interest  when  Time  of  Payment  is  fixed  by  the  Will   ....  407 

§  459.  Interest  on  Annuities 408 

§  460.  Persons  competent  to  receive  Payment  of  Legacies     ....  408 

§  461.  The  Doctrine  of  Election 409 

§  462.  Payment  of  the  Residue 410 

TITLE   SEVEN. 

OF  THE  APPLICATION  OF  THE  ASSETS  FOR  THE  PAYMENT 
OF   DEBTS   AND   LEGACIES. 

PART   I. 
Of  the  Liability  of  Real  Estate  for  the  Debts  of  Deceased  Persons. 

CHAPTER  L. 

OF  THE  PROCEDURE  IN  OBTAINING  THE  ORDER  OF  SALE. 

§  463.  Nature  of  the  Power  to  sell  Real  Estate  for  the  Payment  of 

Debts 413 


Xxvi  TABLE    OF   CONTENTS. 

Page 

§  464.  Sale  by  Executor  under  Power  in  Will 414 

§  465.  Who  may  apply  for  the  Order  to  sell  Real  Estate 414 

§  466.  Within  what  Time  Application  may  be  made 415 

§  467.  Notice  of  the  Application  to  Heirs  and  Devisees      416 

§  468.  What  the  Petition  must  show 417 

§  469.  Proof  of  the  Existence  of  Debts 418 

§  470.  Proof  of  Insufficiency  of  the  Personalty 418 

§  471.  Defence  of  Heir  or  Devisee  to  application  for  Sale 419 

§  472.  What  Interest  of  the  Decedent  in  Lands  may  be  ordered  to  be 


sold 


419 


§  473.  Of  the  Bond  and  Oath  required  of  Executors  and  Administra- 

§  474.  The  Order,  License,  or  Decree  to  Sell 420 


CHAPTER   LI. 

OF   THE    SALE    AND   ITS    CONSUMMATION. 

§  475.  Time  of  Selling 422 

§  476.  Notice  or  Advertisement  of  the  Sale 422 

§  477.  Appraisement  required  before  the  Sale 423 

§  478.  Conducting  the  Sale 424 

§  479.  Report  and  Confirmation  of  the  Sale      425 

§  480.  Payment  of  the  Purchase-Money 426 

§  481.  The  Deed  of  Conveyance      427 

CHAPTER   LII. 

OF  THE  CONSEQUENCES  ATTENDING  THE  SALE. 

§  482.  Application  of  the  Proceeds      430 

§  483.  Purchaser's  Liability  for  Encumbrances 431 

§  484.  Purchaser's  Liability  to  Dowress  and  Homestead  Tenants  .  432 

§  485.  How  Purchasers  are  affected  by  the  Rule  of  Caveat  Emptor  433 

§  486.  The  Purchaser's  Rights  in  Equity 433 

§  487.  Executors  and  Administrators  as  Purchasers 435 

§  488.  Validity  of  the  Sale  in  Collateral  Actions 436 

PART   II. 
Of  the  Relative  Liability  of  Assets  to  Creditors  and  Legatees. 

CHAPTER  LIII. 

OF  MARSHALLING  ASSETS  FOR  THE  PAYMENT  OF  DEBTS  AND  LEGACIES. 

§  489.  Order  of  the  Application  of  Funds  Liable  to  the  Payment  of 

Debts 438 


TABLE   OF   CONTENTS.  XXvii 

§  490.  Charge  of  Debts  on  Real  Estate      440 

§  491.  Charge  of  Legacies  on  Real  Estate 440 

§  492.  Effect  of  Devise  of  Rents  and  Profits 441 

§  493.  Exoneration  of  the  Personalty      442 

§  494.  Exoneration  of  Mortgaged  Property 442 

§  495.  Statutory  Modification  of  the  Rule  as  to  Devise  of  Encum- 
bered property 443 

§  496.  Marshalling  Assets  in  the  Course  of  Administration    ....  444 
§  497.  Marshalling   Assets   among   Creditors,    Legatees,    Devisees, 

Heirs,  and  Distributees     444 


TITLE   EIGHT. 

OF  ACCOUNTING  AND  SETTLEMENTS  BY  EXECUTORS  AND 
ADMINISTRATORS. 


CHAPTER  LIV. 

OF   THE   COMMON   LAW    AND   STATUTORY   SYSTEM   OF   ACCOUNTING. 

§  498.  Accounting  under  the  Older  System  of  Administration   .    .  445 

§  499.  Statutes  requiring  Periodical  Accounting 446 

§  500.  Rendering  the  Account  and  Passing  upon  it 446 

§  501.  Exclusive  and  Concurrent  Jurisdiction  over  Administration 

Accounts 447 

§  502.  Conclusiveness  of  Partial  Settlements 448 

§  503.  Nature  of  Final  Settlements 448 

§  504.  Conclusiveness  of  Final  Settlements 449 

§  505.  Setting  aside  Final  Settlements  in  the  Probate  Court ....  449 

§  506.  Setting  aside  Final  Settlements  in  Chancery 449 

CHAPTER   LV. 

OF   THE    DEBIT   SIDE    OF   THE    ACCOUNT. 

§  507.  What  the  Account  must  show 451 

§  508.  Inventoried  Assets  to  be  charged  in  the  Accoimt 452 

§  509.  What  Interest  Administrators  are  Chargeable  with      ....  452 

§  510.  Debts  of  Executor  or  Administrator  to  be  charged 453 

§  511.  Rents  and  Proceeds  of  Real  Estate  Chargeable  to  the  Ex- 
ecutor or  Administrator 453 

CHAPTER  LVI. 

OF   THE   CREDIT   SIDE    OF   THE   ACCOUNT. 

§  512.  What  the  Accountant  may  take  Credit  for 455 

§  513.  What  Counsel  Fees  will  be  allowed 455 


XXVIU  TABLE    OF   CONTENTS. 

Page 

§  511.  \Miat  Counsel  Fees  will  not  be  allowed      45G 

§  515.  Costs  in  Litigation  Incident  to  Administration 45G 

§  516.  The  Executor's  Expenses  in  Litigation  concerning  Estab- 
lishment of  the  Will 457 

§  517.  Disbursements  in  Respect  of  the  Real  Estate 458 

§  518.  The  Allowance  for  Support  of  Widow  and  Children  ....  458 

§  519.  Advance  Payments  to  Distributees 458 

§  520.  Disbursements  in  Payment  of  Debts 459 

§  521.  Payments  at  Discount,  or  in  Depreciated  Currency     ....  459 
§  522.  Credits    for    Difference    between    Inventoried    and    Actual 

Values 460 

§  523.  Interest  on  Advancements  by  the  Executor  or  Admmistrator  460 


CHAPTER   LVII. 

COMPENSATION   OF   EXECUTORS   AND   ADMINISTRATORS. 

§  524.  Commissions  allowed  by  Statute  and  in  the  Absence  of 

Statutes 461 

§  525.  Compensation  in  Cases  of  Maladministration 461 

§  526.  Upon  what  Property  Commissions  are  allowable      462 

§  527.  Compensation  for  Extra  Services 463 

§  528.  Compensation  of  Joint  Executors  or  Administrators    ....  463 

§  529.  Compensation  to  Successive  Administrators      464 

§  530.  Bequest  to  Executor  as  Bearing  on  his  Right  to  Commission  .  464 

§  531.  Commissions  where  the  same  Person  is  Executor  and  Trustee  465 

§  532.  Credit  for  Commissions  in  the  Administration  Account  .    .    .  465 


CHAPTER  LVIIL 

OF  THE  JIETHOD  AND  PROCEDURE  IN  ADJUDICATING  THE  ACCOUNT. 

§  533.  Devastavit 467 

§  534.  Accounting  by  Co-executors  or  Co-administrators 467 

§  535.  Accounting  by  Successive  Administrators      468 

§  536.  Accounting  for  Assets  received  in  Foreign  Jurisdiction  .    .    .  468 

§  537.  Compelling  Final  Settlement 469 

§  538.  Falsifications  and  Surcharges  on  Final  Settlement 469 

§  539.  Verification  and  Evidence 470 

§  540.  Judgment  on  the  Adjudication  of  the  Accoimt 470 

CHAPTER   LIX. 

OF   APPEALS    FROM   COURTS   OF    PROBATE. 

§  541.  Right  of  Appeal  given  by  Statutes      472 

§  542.  Who  may  appeal 472 

§  543.  From  what  Decisions  of  Probate  Courts  Appeals  are  allowable  472 


TABLE   OF   CONTENTS.  XXIX 

Page 

§  544.  How  Appeal  is  taken      473 

§  545.  Powers  of  the  Probate  Court  after  Appeal 473 

§  546.  Nature  of  the  Trial  in  the  Appellate  Court 474 

§  547.  Nature  of  the  Trial  de  Novo 474 


TITLE  NINE. 
OF  THE  CLOSE  OF   THE   ADMINISTRATION. 

PART   I. 

Of  Distribution  to  Legatees  and  Nezt  of  Kin. 

§  548.  Duty  of  Probate  Courts  to  order  Distribution 475 

CHAPTER  LX. 

OF   AX)V  AN  CEMENTS. 

§  549.  Definition  of  Advancements 476 

§  550.  Distinction  between  Advancement  and  Ademption      ....  476 

§  551.  Jurisdiction  over  Advancements  of  Realty  and  Personalty   .  477 

§  552.  To  whom  the  Doctrine  of  Advancements  applies 477 

§  553.  ^Miat  constitutes  an  Advancement 478 

§  554.  Rights  of  Donees  in  Respect  of  Advancements 478 

§  555.  Computation  of  the  Value  of  Advancenients 479 

§  556.  How  the  Existence  of  Advancements  may  be  shown   ....  480 

CHAPTER   LXI. 

OF   THE   DECREE   OR   ORDER   OF   DISTRIBUTION. 

§  557.  Refunding  Bonds 481 

§  558.  Parties  to  the  Order  of  Distribution.     Its  Conclusiveness  .    .  482 

§  559.  Nature  and  Scope  of  the  Decree      482 

§  560.  Rights  of  Assignees  of  Distributees .    .    .  483 

§  561.  Set-off  to  Legacies  and  Distributive  Shares 484 

§  562.  Distribution  of  Personalty  by  Law  of  Domicile 484 

§  563.  The  \Vidow's  Rights  not  affected  by  Remarriage  or  Prior  Gift  485 
§  564.  The  Share  of  a  Deceased  Distributee  goes  to  his  Personal 

Representative 485 

§  565.  Rights  of  Posthumous  and  Pretermitted  Children 485 

§  566.  Distribution  without  Administration 485 

§  567.  Partial  and  Premature  Distribution 486 

§  568.  Partition  of  Real  Estate  in  Courts  of  Probate 486 

§  569.  Enforcing  the  Order  to  pay  Legacies  and  Distributive  Shares  488 

§  570.  Enforcement  of  Distribution  under  American  Statutes    .    .    .  489 

§  571.  Disposition  of  Unclaimed  Legacies  and  Distributive  Shares  .  489 


XXX  TABLE    OF   CONTENTS. 

PART   II. 
Of  the  Estate  after  Official  Administration. 


CHAPTER   LXII. 

OF  THE   STATUS   OF  EXECUTORS  AND   ADMINISTRATORS   AFTER  FINAL 
SETTLEMENT. 

Pagb 

§  572.  Res  Judicata  as  a  Defence  after  Final  Settlement 491 

§  573.  Duration  of  the  Office  at  Common  Law 491 

§  574.  The  American  Theory  of  the  Duration  of  the  office     ....     492 
§  575.  Statutory  Provisions  for  the  Discharge  of  Executors  and 

Administrators 492 


CHAPTER   LXIII. 

OF   THE    LIABILITY    OF   THE    ESTATE    AFTER    FINAL   SETTLEMENT. 

§  576.  Liability  of  Legatees  and  Distributees  after  Settlement  to 

Creditors  of  Deceased  at  Common  Lav/ 494 

§  577.  Liability  of  Heir  and  Devisee  at  Common  Law 494 

§  578.  Liability  of  Beneficiaries  of  Estate  under  Statutes 494 

§  579.  What  Creditors  can  claim  after  Final  Settlement 494 

§  580.  Extent  of  Liability  of  the  Beneficiary  of  Deceased 495 

§  581.  The  Creditor's  Form  of  Remedy    against   Beneficiaries  of 

Estate 495 

INDEX 497 


TABLE   OF  CASES. 


(References  are  to  Sections] 


A. 

Sec. 

Allen  V.  Freeman,  96  Ky.  313 195 

Anschuetz  v.  Miller,  81  Pa.  St.  212      412 

Avery  v.  Pixley,  4  Mass.  460 45 

B. 

Babb  V.  Reed,  5  Rawle,  151 422 

Baird  v.  Boucher,  60  Miss.  326 408 

Baker  v.  Brown,  18  111.  91     391 

Bank  of  Iron  Gate  v.  Brady,  184  U.  S.  665 279 

Barnum  v.  Baltimore,  62  Md.  275 437 

Barrett  v.  Choen,  119  Ind.  56 269 

Basket  V.  Hassell,  107  U.  S.  602 59 

Bate  I'.  Bate,  11  Bush,  639 528 

Blackstone  v.  MUler,  188  U.  S.  189 319 

Blythe  v.  Hinckley,  127  Cal.  431      12 

Boardman  v.  Woodman,  47  N.  H.  120 20 

Boyce  v.  City  of  St.  Louis,  29  Barb.  650 419 

Brant's  WUl,  40  Mo.  266 493 

Bristol  V.  Washington  Co.,  177  U.  S.  133 320 

Brown  v.  Fletcher,  210  U.  S.  82 156 

Buck  V.  Beach,  206  U.  S.  392 319 

Buckingham  v.  Morrison,  136  111.  437 453 

Bundy  v.  McKnight,  48  Ind.  502 15 

Byers  v.  McAuley,  149  U.  S.  608 144,  154 

C. 

Carpenter  v.  Strange,  141  U.  S.  87 156 

Chambers  v.  City  of  St.  Louis,  29  Mo.  543 419 

Chase  v.  Redding,  13  Gray,  418 64 

Christ  Hospital  ;-.  Grainger,  16  Sim.  83;  s.  c.  1  MacN.  &  G.  460   .    .  425 

Clinton  v.  Clinton,  223  Mo.  371 313 

Coggins' Appeal,  124  Pa.  St.  19 420 

Colton  V.  Colton,  127  U.  S.  300 409 

Copenhaver  v.  Copenhaver,  9  Mo.  App.  200      69 

Cowan  V.  Mueller,  176  Mo.  192 399 

Crites,  Estate  of,  155  Cal.  392,  101  Pac.  316 218 

Cruce  V.  Cruce,  81  Mo.  676 509 


XXXll  TABLE    OF  CASES. 

[References  are  to  Sections] 

Sec. 

Cunnius  v.  School  District,  198  U.  S.  458 192 

Cutting  V.  Gilman,  41  N.  H.  147      58 

D. 

Davis,  In  re,  106  Cal.  543 218 

Davis  V.  Krug,  95  Ind.  1 73 

Dawes  v.  Head,  3  Pick.  128 164 

Day  V.  Wallace,  144  111.  256      405 

Dellner  v.  Dellner,  141  Wis.  255,  s.  c.  124  N.  W.  278 80 

Dcnise  v.  Dcnise,  37  N.  J.  Eq.  163 429 

Despard  v.  Churchill,  53  N.  Y.  192      502 

De  Valengin's  Admr.  v.  Duffy,  14  Peters,  282 294 

Devone  v.  Fanning,  2  Johns.  Ch.  252      487 

Dickson,  Ex  parte,  1  Sim.  (N.  S.)  37 437 

Doolittle  V.  Lewis,  7  John.  Ch.  45 159 

Dowdale's  Case,  6  Co.  47 297 

Dulaney  v.  Willis,  95  Va.  606 398 

E. 

Earp's  Appeal,  28  Pa.  St.  368 456 

Eaton  V.  Brown,  193  U.  S.  411 28 

Edson  V.  Parsons,  155  N.  Y.  555      31 

EUzalde  v.  Elizalde,  137  Cal.  634 294 

Elliott's  Estate,  98  IMo.  379      551 

Evans,  Estate  of,  117  Mo.  A.  629       218 

F. 

Farrar  v.  Dean,  24  Mo.  16 125 

Farrcll  v.  O'Brien,  199  U.  S.  89 154 

Farrill  v.  Roberts,  50  N.  Y.  222 486 

Festorazzi  v.  St.  Joseph's  Church,  104  Ala.  327 427 

Fickle  V.  Snepp,  97  Ind.  289      379 

Finley  v.  King,  3  Peter.?,  376 434 

Fontain  v.  Ravenel,  17  How  (U.  S.)  369 424 

Foote  V.  Overman,  22  111.  App.  181      269 

Forman's  Will,  54  Barb.  274 17 

Foster  v.  Cook,  3  Bro.  C.  C.  340      412 

Freer,  In  re,  22  L.  R.  Ch.  Div.  622 443 

French  v.  French,  14  W.  Va.  458      28 

Fretwell  v.  McLemore,  52  Ala.  124      185 

G. 

Gass  V.  Wilhite,  2  Dana  170      416 

Gates  V.  Seibert,  157  Mo.  254 420 

Gibbons  v.  Mahon,  136  U.  S.  549 456 

Gilkev  V.  Hamilton,  22  Mich.  283 169 

Gollnick's  Estate  (Minn.)  123  Northwestern,  492 78 


TABLE    OF    CASES.  XXxill 

[References  are  to  Sections] 

Sec. 

Gough  V.  Manning,  26  Md.  347 440 

Graham  v.  Burch,  47  Minn.  171 45 

Greenwood  v.  Greenwood,  178  111.  387 336 

Grice  v.  Randall,  23  Vt.  329      [  568 

Gunn  i;.  Barry,  15  Wall.  610 109 

V.  Thruston,  130  Mo.  339 556 


H. 

Haddock  v.  Boston  &  Maine  R.  R.  Co.,  146  Mass.  155 195 

Hart  V.  Soward,  12  B.  Monr.  391 218 

Harvey  v.  Sullens,  46  Mo.  147      15 

Haydel  v.  Hurck,  72  Mo.  253 406 

Healy  v.  Toppan,  45  N.  H.  263 453 

Hoban  v.  Piquette,  52  Mich.  346 16 

Hockaday  v.  Lynn,  200  Mo.  546 73 

Hoeffer  v.  Clogan,  171  111.  462 427 

Hoffman,  Matter  of,  143  N.  Y.  327 320 

Hoke  V.  Herman,  21  Pa.  St.  301 443 

Hope  V.  Wilkinson,  14  Lea,  21      489 

Howe  V.  Dartmouth,  7  Ves.  137 453 

Hunt  V.  Evans,  134  111.  496 410 

Hutchins  v.  St.  Paul  R.  R.,  44  Minn.  5 188 

I. 

Iowa  Loan  &  Trust  Co.  v.  Holderbaum,  86  Iowa,  1 464 

J. 

Jackson  v.  Phillips,  14  Allen,  539 422 

Jellenck  v.  Huron  Copper  Co.  177  U.  S.  1      187 

Johnson  v.  Hoff,  63  Minn.  296      369 

V.  Turner,  29  Ark.  280 103 

V.  Wallis,  112  N.  Y.  230 160 

Jones  V.  Casler,  139  Ind.  382 204 

V.  Clifton,  101  U.  S.  225 275 

Jordan  v.  Hunnel,  96  Iowa,  334 173 

K. 

Kidd  V.  Johnson,  100  U.  S.  617 289 

Kinney  v.  Keplinger,  172  111.  449 212 

Knott  V.  Stearns,  91  U.  S.  638      72 

Kuhn  V.  Kuhn,  125  Iowa,  449 77 

L. 

Lackland  v.  Walker,  151  Mo.  210 426 

Leather  Cloth  Co.  v.  American  Co.,  11  H.  L.  523 289 

Lewis  V.  Parrish,  115  Fed.  (C.  C.  A.)  285 536 


XXXIV  TABLE    OF   CASES. 

[References  are  to  Sections] 

Sec. 

Lily  V.  Hey,  1  Hare,  5S0 422 

Lloyd  V.  Fulton,  91  U.  S.  479 275 

Lupton  V.  Lupton,  2  Jolius.  Ch.  014 449 

M. 

McCall  V.  Hampton,  98  Ky.  166 554 

McNally  v.  Haynes,  59  Tex.  5S3 485 

Maddox  v.  Maddox,  11  Grat.  804 437 

Magee  v.  O'xXeil,  19  S.  C.  170 437 

Mallory's  Appeal,  62  Conn.  218 173 

Martin  i-.  Roe,  8  Ad.  &  El.  14 53 

Michigan  Trust  Co.  v.  Ferry,  175  Fed.  (C.  C.  A.)  667     ....     255,  343 

Michoud  V.  Girod,  4  How  (U.  S.)  503 487 

Miller  v.  Hoover,  121  Mo.  App.  568 187 

Mitchell  V.  Mitchell,  18  Md.  405      437 

Morgan  v.  Dodge,  44  N.  H.  255 133 

Mulford  V.  Mulford,  40  N.  J.  Eq.  163 294 

N. 

New  England  Co.  v.  Woodworth,  111  U.  S.  138 187 

Newkerk  v.  Newkerk,  2  Caines  345 435 

Norton  v.  Frecker,  1  Ark.  524  ... 391 

Noyes  Estate,  40  Mont.  190 39 

O. 

Obert  V.  Hammel,  18  N.  J.  L.  73 139 

O'Donnell  v.  Slack,  123  Cal.  285 261 

Orcutt  V.  Orms,  3  Paige  459      157 

O'Rear  v.  Crura,  135  111.  294 218 

Overby  v.  Gordon,  177  U.  S.  214 156 

P. 

Page  V.  Culver,  55  Mo.  App.  606 269 

V.  Frazer,  14  Bush,  205 4,34 

Pastine  v.  Bonini,  166  Mass.  85 412 

Patton  t'.  Grady,  184  U.  S.  608 279 

Perry  v.  Strawbridge,  209  Mo.  621 78 

Pfluger  V.  Pultz,  43  N.  J.  Eq.  440 32 

Plumber  v.  Coler,  178  U.  S.  115 320 

Powell  V.  Rich,  41  111.  466      269 

Pratt's  Appeal,  117  Pa.  St.  401 289 

Pulling  V.  Durfee,  85  Mich.  34      86 

R. 

Reinders  t-.  Koppelmann,  68  Mo.  482 73 

Richardson  v.  Busch,  198  Mo.  174 187 

Riggs  V.  Palmer,  115  N.  Y.  506 77 


TABLE    OF   CASES.  XXXV 

[References  are  to  Sections] 

Sec. 

Robbin  v.  Mueller,  114  lU.  343 195 

Robbins  v.  Boulware,  190  Mo.  33 476 

Robinson  v.  Fair,  128  U.  S.  53      568 

Rottenberry  v.  Pipes,  53  Ala.  447 106 

Rugg  t;.  Rugg,  83  N.  Y.  592      201 

S. 

Sargent  v.  Sargent,  168  Mass.  420 188 

Sawtelle  v.  Withani,  94  Wis.  412      424 

Schoenberger  v.  Lancaster,  28  Pa.  St.  459 168 

Scholl,  In  re,  100  Wis.  650 414 

Schlottmann  v.  Hoflfman,  73  Miss.  188 413 

Schouler,  Petitioner,  134  Mass.  426 427 

Scott  V.  McNeal,  154  U.  S.  34 191 

Schultz  V.  Pulver,  11  Wend.  361 309 

Security  Co.  v.  Pratt,  65  Conn.  161 154 

Security  Trust  Co.  v.  Bank,  187  U.  S.  211 154 

Shattuck  V.  Chandler,  40  Kan.  516      115 

Sherman  v.  Baker,  20  R.  I.  446 427 

Simon's  Estate,  158  Mich.  256 554 

Smith  t'.  Bank,  5  Pet.  518 163 

Spaulding  v.  Suss,  4  Mo.  App.  541 375 

Stagg  V.  Green,  47  Mo.  500 168 

State  V.  Joyce,  48  Ind.  310 408 

V.  McGljTin,  20  Cal.  233 209 

V.  Withrow,  141  Mo.  69 115 

Straat  v.  O'Neil,  84  No.  68 64 

Strode  v.  St.  Louis  Transit  Co.,  197  Mo.  616 284 

Sulz  V.  Ins.  Ass'n,  145  N.  Y.  563      187 

T. 

Thompson,  Ex  parte,  4  Bradf 42 

Thormann  v.  Frame,  176  U.  S.  350 156,  186 

Throckmorton  v.  Holt,  180  U.  S.  552 45,  207 

Travers  v.  Wallace,  93  Md.  512 415 

Tucker  v.  Harris,  13  Ga.  1 139 

Turner  v.  Am.  L.  &  T.  Co.,  213  U.  S.  257      20 

U. 

Underground  v.  Owslev,  176  Fed.  (C.  C.  A.)  26 154 

U.  S.  Fidelity  &  G.  Co.  v.  People,  44  Colo.  557 347 

U.  S.  V.  Fisher,  2  Cr.  358 356 

United  States  v.  Tyndale,  116  Fed.  R.  (C.  C.  A.)  820 124 

V. 

Vanderbilt  v.  Eidman,  196  U.  S.  480 320 

Van  Slooten  v.  Dodge,  145  N.  Y.  327      294 

Vidal  V.  Girard,  2  How.  (U.  S.)  127 437 


XXXVl  TABLE    OF    CASES. 

IRcferences  are  to  Sections] 


w. 

Sec. 

Walker  i-.  Woolaston,  2  P.  Wms.  57G 175 

Watcrhouse  v.  Churchill,  30  Colo.  415 566 

West  V.  Smith,  8  How.  (U.  S.)  402 526 

Weston  V.  Johnson,  48  Ind.  15      445 

Wild's  Case  Co.  pt.  6,  17 414 

Wilkins  v.  Allen,  18  How  (U.  S.)  385 413 

V.  Ellett,  9  Wall.  740 159 

Williams  v.  Edwards,  94  Mo.  447 388 

V.  Williams,  1  Sim.  (N.  S.)  358 409 

Wilmerton  v.  Wilmerton,  176  Fed.  (C.  C.  A.)  896 443 

Wing  I'.  Angrave,  8  H.  L.  183 190 

Wunderle  v.  Wunderle,  144  111.  40 12 

Wyman  v.  Halstead,  109  U.  S.  654 159 

Y. 

Young  Women's  Christian  Home  v,  French,  187  U.  S.  401     ....  190 


Zeisweiss  v.  James,  63  Pa.  St.  463 416 


THE  LAW  OF  DECEDENTS* 
ESTATES. 


INTRODUCTION. 

OF  THE  NATURE  OF  PROPERTY  AND  THE  PRINCIPLES 
DETERMINING   ITS  DEVOLUTION. 


CHAPTER  I. 

OF  PROPERTY  IN   GENERAL. 

§  1.  Nature  of  Property.  —  Property  is  the  will  of  the  owner 
realized  in  the  thing  or  object.  It  is  the  will  element  that  de- 
termines the  acquisition  of  the  thing  —  makes  it  property  — 
either  by  application  of  labor  in  the  transformation  of  the  orig- 
inal elements  of  nature,  or  by  concurrence  of  the  will  of  him 
who  has  done  this  with  that  of  the  new  owner,  i.  e.,  by  con- 
tract, or  by  both  such  methods.  This  realized  will  is  the  very 
essence  of  property,  and  having  once  attached,  necessarily 
continues  therein  so  long  as  the  thing  or  object  is  property  at 
all.  During  the  life  of  the  owner  the  law  recognizes  his  right 
to  use  or  dispose  of  his  property  according  to  his  free  or  rational 
will  (the  law  does  not  recognize  but  annuls  capricious  will). 
It  can  be  lost  or  transferred  to  another  only  by  what  the  law 
regards  as  the  ouTier's  free  will.  The  consent  (free  will)  of  the 
original  OT\Tier  is  a  necessary  element  in  the  alienation  of  prop- 
erty and  its  acquisition  by  any  successor.  And  the  right  to  a 
rational  alienation  is  an  essential  element  of  property. 

Having  been  once  realized  in  existing  property,  the  will 
element  thereof  that  is  of  its  essence,  is  not  destroyed  or  can- 
celled because  of  the  owner's  death,  but  inheres  in  his  property 
and  continues  therein.  The  law  still  recognizes  this  will  of 
the  deceased  owner  by  disposing  of  the  property  according  to 


2  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  2 

his  particular  will  (testament)  if  he  chooses  to  make  one;  or 
if  he  does  not,  then  according  to  what  it  assumes  to  be  his 
rational  will,  under  the  laws  of  descent  and  distribution, 
which  are  in  effect  a  universal  will  which  the  law  substitutes  or 
makes  for  the  owner,  and  which  he  adopts  and  makes  his  own 
by  dying  intestate.^ 

Out  of  this  germ,  including  the  legal  determination  of  what 
is  or  is  not  the  rational  or  free  will  of  a  decedent  with  reference 
to  his  property  (for  instance  as  affecting  testamentary  capacity, 
support  of  surviving  family,  payment  of  debts,  etc.)  grows 
the  body  of  probate  law  which  it  is  our  purpose  to  discuss. 

§  2.  Nature  of  Law.  —  Law,  as  administered  in  human  af- 
fairs, is  not  studied  as  an  abstract  science.  Its  development  is 
historic.  It  begins  in  crude  customs  of  a  rude  race,  slowly 
modified  and  moulded  through  the  ages  to  meet  changing  social 
conditions.  These  changes  in  large  measure  have  brought  the 
law  to  our  ethical  standards  in  substance;  in  form,  however, 
some  of  the  ancient  rules,  the  reasons  for  which  have  long 
ceased  to  exist,  are  retained  to  this  day.  For  instance,  an  illus- 
tration may  be  next  given  to  which  frequent  reference  is  made 
in  the  body  of  this  work. 

*  The  philosophical  basis  of  the  law  of  successions  cannot  be  entered 
upon  here,  but  the  reader  is  referred  for  a  lucid  discussion  thereof  to  the 
Introduction  in  Woemer  on  Administration,  §  1  ei  seq. 


§§  3,  4]      EFFECT  OF  THE   FEUDAL  SYSTEM  IN  A.MERICA. 


CHAPTER  II. 

EFFECT  OF  THE   FEUDAL  SYSTEM  IN  AMERICA. 

§  3.  Feudal  Influences.  —  The  property  of  the  deceased  must 
be  distributed  according  to  law.  In  the  nature  of  things  some 
person  must  be  put  in  charge,  under  the  direction  of  a  legal 
tribunal.  Such  an  official,  called  executor  or  administrator, 
has  existed  since  very  ancient  times.  There  is  in  our  day  no 
reason  why  this  official  should  not  take  charge  of  realty  as 
well  as  of  personalty.  But  such  is  not  the  common  law.  AMiile 
the  title  to  the  personalty  goes  from  the  deceased  directly  to 
the  executor  or  administrator,  and  the  beneficiaries  under  a 
will  or  the  distributees  in  case  of  intestacy  get  their  title  thereto 
only  through  that  official,  yet  realty  goes  directly  to  the  heir 
or  devisee,  and  the  executor  or  administrator  has  no  concern 
therewith. 

This  common-law  view  was  rational  under  the  feudal  system. 
It  is  assumed  that  the  student  has  studied  the  law  of  Real 
Property,  and  no  recapitulation  of  the  development  of  feudal 
law  is  here  attempted.  If  we  recall  the  precarious  nature  of 
estates  at  the  time  of  the  Conquest,  the  original  absence  of 
any  right  in  the  vassal's  heir,  as  shown  long  after  when  the 
heir's  right  was  recognized  in  the  fine  he  paid  the  lord  for  en- 
tering, it  was  logical  that  the  realty  constituted  no  part  of  a 
decedent's  estate,  "\^^len  in  the  lapse  of  time  inheritable  estates 
in  the  modern  sense  were  developed,  the  common  law  as  to  admin- 
istration had  solidified  on  the  old  lines  too  much  to  permit  of 
a  reformation,  apart  from  statute.  The  historical  fact  that  the 
English  courts  through  centuries  persistently  favored  the  heir 
as  between  conflicting  claimants  must  also  be  taken  into  ac- 
count. Hence  it  is  true  to-day  that,  so  far  as  statutes  have 
not  changed  the  law,  the  executor  or  administrator  does  not 
take  the  realty  of  the  decedent. 

§  4.  Modified  in  England  by  Statutes.  —The  great  practical 
injustice  flowing  from  this  doctrine  of  feudal  origin  was  that 


4  THE  LAW   OF  DECEDENTS'  ESTATES.  [§  5 

the  lands  of  the  decedent,  even  though  he  had  held  the  title  in 
fee  simple,  were  not  liable  at  common  law  for  his  debts.  The 
evil  was  met  in  England  by  a  series  of  statutes,  and  in  every 
State  of  the  Union  statutory  provisions  are  made,  though  even 
in  modern  times  it  is  possible  here  and  there  to  find  a  casus 
omissus  still  governed  by  the  common  law.  Those  statutes,  it 
should  be  noted,  while  subjecting  realty  to  special  remedies 
in  favor  of  creditors,  do  not  in  form  abolish  the  common-law 
distinction  between  the  descent  of  realty  and  personalty  of  the 
decedent. 

§  6.  Incongruity  of  the  Rule  in  America.  —  The  incongruity 
of  this  common-law  doctrine,  more  conspicuous  in  a  country 
in  which  feudaUsm  had  never  obtained  foothold,  together  with 
the  attempts  made  in  many  of  the  States  to  abolish  or  modify 
the  rule  as  inconsistent  with  the  true  theory  of  property,  has 
produced  much  confusion  and  inconsistency  in  the  decisions  of 
the  courts  of  the  several  States  touching  the  law  of  real  estate 
of  deceased  persons.  The  common  law,  including  the  statutes 
of  England  enacted  before  the  settlement  of  the  Colonies,  is 
not  only  the  basis  upon  which  the  new  States  built  up  their 
own  systems,  but  was  enacted  as  law  in  almost  every  State, 
introducing,  save  as  against  affirmative  legislative  modifica- 
tion, the  feudal  principles  which  it  embodies.  These  principles 
are  so  interwoven  with  common-law  jurisprudence  that  to 
remove  them  would  destroy  the  whole  texture.  It  seems  to  be 
so  difficult,  indeed,  entirely  to  eliminate  from  our  codes  those 
rules  and  doctrines  which  constitute  an  essential  element  of 
the  common  law,  but  which  grew  out  of  conditions  utterly 
different  from  our  own,  that  but  few  legislatures  have  under- 
taken the  task  of  building  up  a  purely  American  system;  and 
what  efforts  are  made  by  legislatures  in  this  direction  are  often 
thwarted  by  the  conservative  spirit  of  lawyers  and  judges,  in 
construing  American  statutes  from  the  standpoint  of  the  com- 
mon law.  In  some  of  the  States,  however,  the  distinction  be- 
tween personal  and  real  property,  as  affecting  the  course  of  its 
descent,  has  been  entirely  abolished,  and  in  most  of  them  the 
common-law  rule  more  or  less  modified.  These  attempts  to 
adapt  the  common  law  to  the  condition  of  things  in  America, 
in  which  the  legislative  and  judicial  authorities  of  each  State 


§  G]  EFFECT   OF  THE   FEUDAL  SYSTEM  IX  AMERICA.  5 

proceed  according  to  their  own  views  of  the  poHcy  demanded 
for  the  interest  of  its  citizens,  either  retaining  the  common 
law,  or  modifying  it  to  a  greater  or  less  extent,  or  cutting  loose 
from  it  entirely,  have  resulted  in  a  bewildering  labyrinth  of 
conflicting  decisions,  not  only  among  the  several  States,  but 
in  the  States  themselves.^ 

§  6.  Function  of  Special  Courts  for  Administration.  —  Post- 
poning consideration  of  the  historical  origin  of  our  Probate 
Courts,  we  direct  attention  to  a  fundamental  difference  between 
all  courts  having  exclusive  jurisdiction  of  matters  pertaining 
to  the  administration  of  the  estates  of  deceased  persons  and 
courts  of  ordinary  plenary  jurisdiction. 

The  division  of  the  powers  of  government  into  their  constit- 
uent elements  results,  in  all  modern  free  States,  in  the  three 
co-ordinate  departments,  confided  to  separate  magistracies, 
known  as  the  legislative,  judicial,  and  executive.  It  is  sufficient 
for  the  present  purpose  to  bear  in  mind  that  it  is  the  office  of 
the  judiciary  to  interpret  and  apply  the  law  established  by  the 
legislative  branch  to  cases  arising  out  of  collision,  whether 
actual  or  imaginary,  with  the  law,  leaving  it  to  the  executive 
branch  to  carry  out  the  judgments  of  the  courts.  Thus  the 
judge  is  seen  to  act  as  the  organ  or  mouthpiece  of  the  law, 
announcing,  in  each  case  brought  to  his  official  cognizance, 
whether  the  alleged  collision  between  the  will  of  an  individual, 
as  objectified  in  an  outward  act  (for  will  which  is  undeter- 
mined, not  become  external  by  accomplishment  of  its  purpose, 
is  beyond  the  realm  of  the  law,  which  deals  only  with  the  actual) , 
is  real  or  imaginary.  In  the  exercise  of  this  function,  the  judge, 
with  a  directness  peculiar  to  this  branch  of  sovereign  power, 
accomplishes  the  great  office  and  end  of  the  State  and  of  all 
government,  the  accomplishment  of  justice,  the  realization  of 
will :  securing  to  the  rational  will  of  the  individual  its  legitimate 
fruition,  and  holding  the  irrational,  capricious,  or  negative  v^'ill 
to  its  own  logical  result  (reparation  and  punishment  for  wrong 
and  crime). 

But  we  have  seen  that  all  property  subject  to  administration 
is  deficient  in  that  element  which  alone  can  be  the  basis  of  a 
collision  between  the  individual  will  and  the  law;  it  is  the 
^  Woerner  on  Administration,  §  16. 


6  THE   LAW   OF  DECEDEXTS'   ESTATES.  [§  6 

province  of  the  court  having  jurisdiction  over  the  administra- 
tion of  decedents'  estates  to  supply  the  iiidhidual  loill  lacking 
in  the  property,  to  fill  the  vacuum  created  by  the  death  of  the 
owner  with  the  content  of  the  universal  will;  that  is,  to  secure 
the  disposition  of  property  under  administration  as  the  owner,, 
acting  rationally,  would  have  disposed  of  it  if  living.  The 
functions  involved  in  this  office  have  a  ministerial  element 
superadded  to  their  judicial  quality,  which,  if  they  occurred  in 
ordinary  courts  of  law  or  equity,  would  require  the  interven- 
tion of  adjuncts  —  commissioners,  auditors,  referees,  etc.  — 
involving,  aside  from  the  question  of  inconvenience,  delay, 
and  cost,  an  incongruity  in  the  duties  of  the  office. 

Such  being  the  logical  basis  and  scope  of  courts  having  con- 
trol of  executors  and  administrators,  their  historical  develop- 
ment in  England,  but  more  particularly  in  the  United  States, 
has  been  a  gradual  but  steady  separation  from  the  common- 
law  and  chancery  courts,  and  has  resulted  in  a  practical  recog- 
nition of  probate  jurisdiction  as  a  distinct  and  independent 
branch  of  the  law,  destined  to  achieve  for  itself  a  sphere  sui 
generis,  based  upon  and  determined  by  its  own  inherent 
principles.^ 

^  Woemer  on  Administration,  §  11. 


7,  8]      DEVOLUTION  OF  PROPERTY  ON  DEATH  OF  OWNER. 


TITLE   ONE. 

OF    THE    DEVOLUTION    OF    PROPERTY    ON    THE 
DEATH   OF   ITS   OWNER. 


PART  I. 


OF   THE   DEVOLUTION  AS   DETERMINED   BY   THE    ACT   OF 
THE  OWNER. 


BOOK  ONE. 
OF  TESTMIENTARY  DISPOSITION  OF  PROPERTY. 


§  7.  What  is  Disposable.  —  A  man  must  be  just  before  he  is 
generous.  The  law  must  step  in  to  protect  rights  existing  at 
death,  such  as  those  of  creditors.  But  in  normal  cases,  after 
the  demands  of  justice  are  satisfied,  there  is  a  residuum  to  be 
disposed  of.  The  disposition  of  that  balance,  the  estate  which 
really  belonged  to  the  deceased,  is  the  matter  we  shall  first 
consider. 

§  8.  Disposition  by  Will  or  in  Case  of  Intestacy.  —  The  de- 
ceased may  dispose  of  that  balance  in  the  way  and  to  the  extent 
the  State  permits  it  (last  will) ;  or,  in  default  of  such  disposition 
by  the  deceased,  the  State  will  determine  to  whom  the  estate 
goes  (the  law  of  descent  and  distribution). 


TUE   L.iW  OF  DECEDENTS'   ESTATES.  [§§  9,  10 


CHAPTER  III. 

OF  THE   EXTERNAL  LIMITS  PLACED   UPON  TESTAMENTARY 
CAPACITY. 

§  9.  The  Right  to  make  a  Will.  —  The  right  of  a  person  to 
dispose  of  his  property  after  his  death  is  not  an  unHmited 
natural  one.  The  State  not  only  regulates  the  form  of  the  ex- 
ercise of  such  rights,  but  in  many  countries  has  heavily 
restricted  it.  The  Roman  law  proceeded  from  practically  un- 
limited power  of  disposition  (Law  of  the  Twelve  Tables)  to 
a  limitation  thereof  {Lex  Falcidia).  In  most  countries  of  the 
Continent  of  Europe  children  have  to-day  rights  to  some 
definite  portion  of  the  estate  of  the  deceased  parent,  of  which 
they  can  be  deprived  by  will  only  under  peculiar  circumstances. 
In  the  United  States,  the  Code  of  Louisiana,  which  retains 
many  principles  of  the  Civil  Law,  most  nearly  represents  the 
Continental  view. 

The  legislation  of  England  has  constantly  enlarged  the 
powers  of  testators  in  this  respect  until  now  it  has  been  said 
that  both  in  England  and  America  the  right  to  dispose  of 
property  by  will  is  as  broad  and  comprehensive  as  the  right 
of  disposition  while  living. 

Still,  though  our  jurisprudence  does  not  recognize  the  con- 
tinental view  that  children  take  from  parents  by  a  natural 
right  of  succession  overriding  the  will,  it  does  set  aside  from 
the  decedent's  estate  some  things  for  the  support  of  the  widow 
and  minor  children.  This  may  be  considered  the  enforcement 
of  a  high  duty  of  the  deceased,  a  duty  even  higher  than  the 
payment  of  personal  debts.  This  law  of  dower,  widow's 
rights,  support  of  family,  and  homestead  are  deferred  to  sub- 
sequent chapters. 

§  10.  The  Right  to  will  Realty  at  Common  Law.  —  It  must 
be  noted  that  there  was  a  long  period  in  English  history 
during  which  the  legal  title  to  real  estate  could  not  be  dis- 


§§  11,  12]      LIMITS   PLACED   UPON  TESTAMENTARY  CAPACITY.       9 

posed  of  by  will.  In  the  inception  of  the  feudal  system  ob- 
viously the  feoffee  left  at  his  death  no  interest  in  the  land.  He 
thus  could  make  no  will,  and  the  principle  thus  established 
was  maintained  as  to  legal  estates  until  the  Statute  of  Wills 
(32  Henry  VHI  — a.  d.  1541).  But  it  had  been  held  that 
uses  could  be  disposed  of  by  will,  and  that  powers  to  create 
uses  could  be  exercised  by  a  will.  When  the  feudal  system 
was  forced  to  accommodate  itself  to  more  modern  demands, 
this  power  to  dispose  of  uses  by  will  tempered  the  rule  that 
legal  titles  could  not  be  willed.  But  when  the  Statute  of  Uses 
was  passed  (27  Henry  VIH  —  a.  d.  1536)  it  was  at  first  sup- 
posed that  the  object  of  the  Statute,  namely,  the  destruction 
of  all  equitable  estates,  had  been  fully  accomplished.  With 
such  result  it  would  have  been  impossible  to  dispose  of  realty 
by  will.  It  is  true  that  land  owners  could  have  adapted  them- 
selves to  the  equitable  estates  evolved  under  court  decisions 
from  the  statute.  It  is  now  clear  that  by  creation  of  recog- 
nized equitable  estates,  the  owner  could  practically  secure  the 
right  of  testamentary  disposition  without  depending  on  the 
Statute  of  Wills.  But  the  evolution  of  these  equitable  estates 
under  the  Statute  of  Uses  took  generations.  When  the  Statute 
of  Wills  was  passed  it  seemed  necessary  to  secure  the  power  of 
testamentary  disposition  of  realty. 

§  11.  Testamentary  Capacity.  —  All  natural  persons  have 
capacity  to  make  a  will,  as  they  have  capacity  to  contract, 
unless  they  fall  within  excepted  classes,  which  are  fixed  by 
law  on  grounds  of  public  policy;  or  unless  from  immanent 
defect  of  mind  they  are  not  able  to  do  so. 

Questions  as  to  disqualifications  created  by  law  may  arise 
from  reasons  of  public  policy  without  reference  to  the  mental 
capacity  of  the  individual,  as  for  instance  in  the  case  of  aliens. 
On  the  other  hand  the  legal  disqualification  may  rest  on  an 
arbitrary  conclusive  presumption  as  to  that  capacity,  as  in 
the  case  of  minority. 

§  12.  Aliens.  —  This  section  extends  beyond  the  immediate 
question  whether  an  alien  can  make  a  will,  and  deals  with  the 
rights  in  property  of  a  deceased  alien,  testate  or  intestate, 
and  with  the  right  of  an  alien  to  take,  by  will  or  descent,  prop- 
erty of  the  deceased,  whether  alien  or  not. 


10  THE  LAW   OF  DECEDENTS'  ESTATES.  [§  12 

An  alien  can  dispose  of  personalty  by  will  as  freely  as  can  a 
citizen.    But  the  situation  is  different  as  to  realty. 

It  is  against  the  policy  of  the  State  that  its  lands  should  be 
controlled  by  aliens.  But  it  is  for  the  State  alone  to  enforce 
that  policy  or  forbear  doing  so.  Third  persons  cannot  invoke 
this  right,  which  rests  in  the  exclusive  discretion  of  the  State. 
Hence  the  alien  who  acquires  realty  by  "purchase"  can  hold 
it  against  any  one  but  the  State.  The  State  can  assert  its 
right  against  the  living  alien  only  by  a  judicial  procedure,  by 
information  and  "office  found."  The  public  policy  is  directed 
against  the  control  of  realty  by  aliens.  Should  the  living 
alien  part  with  his  title  before  the  State  sees  fit  to  enforce 
the  forfeiture,  there  seems  to  be  no  reason  why  the  alien's 
grantee,  otherwise  qualified  to  take,  should  not  hold  a  title 
with  which  the  State  cannot  interfere.  The  alien  can  even 
sue  in  ejectment. 

An  alien  cannot  at  common  law  be  heir  to  realty.  Upon 
the  death  of  an  intestate  owner  of  realty,  whether  citizen  or 
alien,  leaving  only  aliens  as  his  surviving  relatives,  the  prop- 
erty escheats  to  the  State.  In  this  case  there  is  no  occasion 
for  the  exercise  of  the  State's  discretion.  The  relatives,  no 
matter  how  close,  are  not  heirs:  the  State  takes  directly  as 
"ultimus  luBres." 

It  would  seem  clear  that  an  alien  can  take  under  a  will.  No 
reason  is  perceived  why  a  devise  should  be  excepted  from  the 
rule  that  an  alien  can  take  by  "purchase"  (as  the  latter  term 
is  technically  used  in  the  law  of  real  property).  Of  course 
such  alien  devisee  takes  subject  to  the  exercise  of  the  State's 
right  to  divest  his  title. 

It  would  seem  that  the  alien  owner's  will  should  dispose  of 
his  realty,  not  only  against  non-alien  heirs,  but  also  against 
the  State. 

The  foregoing  states  the  common  law.  Discussion  of  some 
doubtful  points  is  omitted  because  changes  by  statute  in  the 
American  States  in  the  nineteenth  century  went  far  toward 
obliterating  the  distinction  between  citizens  and  aliens  in  the 
ownership  of  real  property.  INIany,  if  not  most,  States  enabled 
alien  friends  to  acquire  lands  by  purchase,  devise,  or  descent, 
and  to  hold,  alien,  devise,  and  transmit  the  same  uncondi- 


§  13]       LIMITS  PLACED   UPON  TESTAMENTARY  CAPACITY.  11 

tionally.  In  later  years,  however,  large  holdings  of  land  by 
foreigners,  natural  persons,  and  corporations  have  caused 
alarm,  particularly  in  the  Western  States,  and  a  counter  cur- 
rent has  set  in,  indicating  a  disposition  on  the  part  of  legis- 
lators to  restrict  the  concessions  theretofore  made  to  aliens. 
The  laws  of  each  State  must  be  examined,  and  of  course  the 
common  law  must  be  remembered  in  that  connection. 

Though  the  title  of  aliens  to  land  within  the  limits  of  the 
several  States  of  the  Union  is  a  matter  of  State  regulation, 
yet  the  treaty-making  power  of  the  United  States  includes  the 
regulation  of  the  transfer,  devise,  and  inheritance  of  property 
in  this  country  owned  by  citizens  of  a  foreign  country:  hence 
a  treaty  between  the  United  States  and  a  foreign  country  will 
control  or  suspend  the  Statutes  of  the  individual  States  when 
there  is  a  difference  between  them.^ 

§  13.  Infants.  —  It  is  clearly  impracticable  to  inquire  in 
each  individual  case  whether  a  young  person  has  sufficient 
capacity  for  a  contemplated  act.  The  law  fixes  the  age  ar- 
bitrarily. For  different  purposes  different  ages  may  be  fixed; 
e.  g.,  for  capacity  to  contract,  to  marry,  to  vote,  to  commit  a 
crime.  In  England  a  male  of  fourteen  and  a  female  of  twelve 
could  make  wills  of  personalty.  This  limitation  seems  to 
have  been  derived  from  the  canon  law,  which  was  natural, 
since  ecclesiastical  courts  had  jurisdiction  in  probate  matters, 
as  will  hereafter  appear.  But  the  rule  was  abolished  by  statute 
in  England  in  1838.  There,  now,  no  will  of  realty  or  personalty 
can  be  made  by  a  person  under  twenty-one  years  of  age.  The 
matter  in  this  country  is  regulated  by  statutes,  which  must 
be  examined  in  each  case.  In  some  States  wills  of  personalty 
are  permitted  at  an  earlier  age  than  wills  of  realty;  in  others 
females  can  make  wills  of  realty  or  personalty  at  an  earlier 
age  than  males.  The  more  common  provision  is  to  require 
the  testator  to  be  of  full  age  to  make  a  will  of  realty  or 
personalty. 

The  appointment  of  testamentary  guardians,  as  authorized 
by  the  Statute  of  12  Car.  II.,  is  in  many  States  expressly  con- 
ferred on  infant  fathers. 

1  Wunderle  v.  Wunderle,  144  111.  40,  54;  Blythe  v.  Hinckley,  127  Cal. 
431. 


12  THE  LAW   OF  DECEDENTS'  ESTATES.  [§  14 

§  14.  Married  Women.  —  At  common  law  a  married  woman 
could  make  no  will.  This  results  from  the  common-law  doc- 
trine merging  the  wife's  legal  existence  in  the  husband.  As 
wife  she  can  have  no  will,  to  contract,  or  to  dispose  of  her  prop- 
erty after  death.  So-called  exceptions  are  cases  which  really 
fall  outside  of  the  reason  of  the  rule. 

Thus  it  is  said  that  a  married  woman  may  will  personalty 
with  the  consent  of  her  husband.  Since  the  husband  can  make 
the  wife's  personalty  at  common  law  absolutely  hi^s  own,  the 
transaction  is  really  the  husband's  gift.  Accordingly  it  is  held 
that  the  husband  may  retract  his  consent  even  after  the  wife's 
death  provided  it  is  done  prior  to  the  probate  of  the  will. 

So  a  married  woman  may  dispose  by  will,  without  her  hus- 
band's consent,  of  property  which  she  holds  in  some  trust 
capacity,  as  where  she  takes  as  executrix.  Here  she  has  no 
interest  in  the  property  and  consequently  her  husband  has 
none.  Should  she  have  a  beneficial  interest,  her  will  could  not 
dispose  of  that  without  her  husband's  consent. 

^Yhile  the  rule  at  law  is  as  above  stated,  in  equity  the  power 
of  married  women  to  dispose  by  will  of  their  equitable  interests 
in  real  as  well  as  personal  property  has  been  fully  recognized 
for  centuries,  antedating  the  Statute  of  Wills  and  the  Statutes 
of  Uses.  Hence  all  property  over  which  courts  of  Chancery 
have  jurisdiction  may  be  as  freely  and  fully  devised  by  a 
married  woman  as  by  a  feme  sole,  whether  the  legal  estate  is 
vested  in  a  trustee  or  not,  since  the  husband  and  all  persons 
on  whom  the  legal  title  may  devolve  will  be  deemed  trustees 
for  the  persons  to  whom  the  wife's  will  gives  the  equitable 
interest. 

The  common-law  disability  of  a  married  woman  to  make  a 
will  has  been  substantially  obliterated  in  most  jurisdictions. 
In  England  it  was  done  by  the  IMarried  Woman's  Property 
Act  of  1882  (45  and  46  Victoria).  In  most  States  of  the  Union 
a  married  woman  can  make  a  will  as  freely  as  a  feme  sole;  but 
in  some  {e.  g.,  Georgia  and  North  Carolina)  the  common  law 
prevails;  while  Ihnitations  of  different  kinds  exist  in  a  number 
of  States. 


§  15]      INCAPACITY  ARISING   FROM  MENTAL  DISABILITIES.  13 


CHAPTER  IV. 

INCAPACITY  ARISING   FROM  MENTAL  DISABILITIES. 

§  15.  Degree  of  Mental  Vigor  Requisite  to  make  a  Will.  — 
The  incapacity  to  make  a  will  may  be  based  on  personal  mental 
deficiency,  arising  from  idiocy,  lunacy,  or  other  permanent  or 
temporary  disorder  of  the  mind,  inconsistent  with  the  exercise 
of  the  intelligent  will,  the  question  here  being  as  to  the  testator's 
subjective  mental  condition  without  reference  to  influences  from 
outside ;  or  the  incapacity  may  be  based  on  such  mere  weakness 
of  the  mind  as  unfits  it  to  resist  undue  influences,  so  that  the 
testator's  dispositions  cannot  be  said  to  be  his  own  spontaneous 
acts,  but  rather  the  results  of  importunities,  devdces,  fraudulent 
representations,  or  even  of  threats  and  force  brought  to  bear 
on  him  by  designing  persons. 

Taking  up  first  the  testator's  subjective  mental  condition, 
no  rule  can  be  laid  down  to  indicate  the  precise  degree  of  in- 
telligence or  mental  vigor  necessary  to  constitute  testamentary 
capacity.  Clearly  the  capacity  which  is  adequate  for  the  trans- 
action of  the  ordinary  business  of  life  suffices  for  making  a 
will.  A  party  capable  of  acting  rationally  in  buying  and  selling 
property,  settling  accounts,  collecting  and  paying  out  money, 
and  borrov.'ing  or  loaning  it  out,  is  capable  of  making  a  valid 
will.  But  while  this  is  true,  it  does  not  furnish  the  proper 
test:  since  an  inferior  degree  of  mental  power  may  suffice  for 
making  a  good  will.  The  rule  laid  douTi  in  a  number  of  States 
seems  now  to  be  this:  "While  the  law  does  not  undertake  to 
measure  a  person's  intellect,  and  define  the  exact  quantity  of 
mind  and  memory  which  a  testator  shall  possess  to  authorize 
him  to  make  a  valid  will,  yet  it  does  require  him  to  possess 
mind  to  know  the  extent  and  value  of  his  property,  the  number 
and  names  of  the  persons  who  are  the  natural  objects  of  his 
bounty,  their  deserts  with  reference  to  their  conduct  and  treat- 
ment toward  him,  their  capacity  and  necessity,  and  that  he 


14  THE   L.\W   OF   DECEDENTS'   ESTATES.  [§  16 

shall  have  sufficient  active  memory  to  retain  all  these  facts  in 
his  mind  long  enough  to  have  his  will  prepared  and  executed; 
if  he  has  sufficient  mind  and  memory  to  do  this,  the  law  holds 
that  he  has  testamentary  capacity;  and  even  if  this  amount  of 
mental  capacity  is  somewhat  obscured  or  clouded,  still  the 
will  may  be  sustained. ''v^  It  should  be  remembered  that  the 
decisive  question  always  is  whether  the  instrument  propounded 
is  the  spontaneous  act  of  a  person  understanding  its  nature 
and  consequences.  As  is  explained  hereafter,  the  question 
whether  the  instrument  is  the  last  will  of  the  testator  is  usually 
contested  before  a  jury,  and  is  a  question  of  fact  for  the  jury 
under  instructions  of  the  court. 

§  16.  Incapacity  of  Idiots,  Imbeciles,  Deaf,  Dumb,  and  Blind.  — 
The  incapacity  to  make  a  will  may  be  merely  temporary  at 
the  time  of  making  the  will  (e.  g.,  the  delirium  of  a  fever),  or 
a  derangement  of  mind  as  to  facts  (e.  g.,  lunacy  as  discussed 
in  the  next  section),  or  a  permanent  incapacity  of  a  general 
nature  {e.  g.,  imbecility  or  idiocy).  Imbecility  in  its  strict  use 
should  be  limited  to  the  mental  condition  in  which  no  will 
can  be  made.  This  still  is  the  sense  when  we  speak  of  imbeciles. 
But  imbecility  is  also  used  at  times  to  describe  a  condition  of 
mental  weakness  falling  short  of  incapacity  to  will,  but  sub- 
jecting the  individual  to  influences  which  ordinary  minds  would 
resist.  In  this  sense  imbecility  is  an  important  factor  when  a 
will  is  attacked  as  having  been  obtained  by  undue  influence. 
The  two  uses  of  the  term  must  be  carefully  distinguished. 

There  is  in  old  cases  much  discussion  as  to  idiocy  and  various 
special  phases  thereof.  Early  writers  lay  do\\Ti  such  narrow 
tests  as  inability  to  count  twenty  pence,  to  tell  father  and  mother, 
or  his  own  age.  But,  in  view  of  the  test  laid  dowTi  in  the  pre- 
ceding paragraph,  such  discussions  seem  profitless.  Of  course 
a  natural  fool  has  not  sufficient  mind  to  make  a  will,  but  mere 
weakness  of  mind,  whimsicality,  or  eccentricity  is  not  sufficient 
in  the  absence  of  other  proof  of  incapacity  to  invalidate  a  will. 
Nor  is  the  situation  different  when  the  weakness  of  mind  is 
brought  on  by  old  age,  epilepsy,  or  similar  diseases,  habitual 
drunkenness,  or  any  other  cause.  Senile  dementia  may  be  so 
pronounced  as  to  invalidate  a  will,  but  it  must  be  remembered 

1  Bundy  v.  McKnight,  48  Ind.  502,  511;  Harvey  v.  SuUens,  46  Mo.  147. 


§  17]      INCAPACITY   ARISING   FROM  MENTAL  DISABILITIES.  15 

that  less  mind  is  needed  for  a  will  than  for  a  contract.  "There 
is  no  rule  of  law  which  prescribes  average  capacity  for  a  testa- 
mentary act."  ^ 

In  English  law  and  in  the  civil  law,  from  which  the  rule  was 
borrowed,  it  was  held  that  a  person  born  deaf,  dumb,  and  blind 
was  incapable  of  making  a  will.  Such  is  not  the  law  now.  Such 
a  person,  or  one  merely  blind,  or  merely  deaf  and  dumb,  can 
make  a  will  if  capacity  otherwise  exists.  But  as  imposition 
can  easily  be  practised  on  one  in  such  unfortunate  position, 
modern  authorities  still  require  very  great  scrutiny  in  such 
cases  into  the  testator's  knowledge  and  approval  of  the  will. 
So,  while  it  is  not  ordinarily  necessary  to  prove  that  the  will 
was  read  by  or  to  a  testator  with  the  normal  senses,  since  a 
person  signing  an  instrument  is  presumed  to  know  its  contents, 
yet  if  evidence  be  given  that  the  testator  was  blind,  or  could 
not  read,  or  for  any  reason  was  not  acquainted  with  the  con- 
tents of  the  will,  such  evidence  must  be  met  by  satisfactory 
proof,  either  that  the  will  was  read  to  or  by  the  testator,  or 
that  its  contents  were  known  to  him. 

§  17.  Lunatics.  —  The  distinctions  between  idiots,  persons 
of  weak  mind,  and  lunatics  may  be  of  practical  importance  in 
will  contests.  For  if  it  be  proved  that  the  testator  was  an  idiot, 
this  will  invalidate  the  will.  If  it  be  shown  that  he  was  of 
weak  mind,  the  question  will  usually  be  whether  there  was 
undue  influence.  If  his  mind  was  affected  by  delusions  (lunacy) , 
the  validity  of  the  will  must  depend  upon  the  further  question 
whether  it  is  affected  by,  or  its  provisions  are  the  consequence 
of,  an  insane  delusion. 

Lunacy  was  first  applied  with  reference  to  those  who  suffered 
periodical  mental  aberration,  supposed  to  be  dependent  on 
lunar  influence;  whence  the  term  is  derived.  It  was  then  used 
to  include  those  who  suffered  permanently  from  partial  mental 
derangement.  As  now  used,  it  denotes  insanity  generally.  It 
is  said  to  be  a  disease  of  the  brain,  a  mental  disorder  by  which 
the  freedom  of  the  will  is  impaired.  The  legal  test  of  insanity 
is  delusion.  "  Insane  delusion  consists  in  a  belief  of  facts  which 
no  rational  person  would  believe,"  ^  taking  things  for  reaUties 

»  Per  Cooley,  J.,  in  Hoban  v.  Piquette,  53  Mich.  346,  361. 
2  Forman's  Will,  54  Barb.  274,  289. 


16  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  18 

which  exist  only  in  the  imagination,  and  which  are  impossible 
in  the  nature  of  things,  mingling  ideas  of  imagination  with 
those  of  sensation,  and  mistaking  one  for  the  other. 

Partial  insanity,  existing  when  a  person  has  insane  delusions 
as  to  one  or  more  subjects  only,  does  not  destro}^  testamentary 
capacity  unless  the  insane  delusion  affects  the  testamentary 
disposition.  But,  if  that  be  the  case,  the  will  is  bad,  though 
the  testator  have  sound  memory  and  good  reasoning  powers 
in  all  other  matters. 

Neither  superstition  nor  ignorance,  however  gross,  nor  error 
in  fact,  nor  prejudice,  nor  unfounded  suspicion,  amounts  to 
an  insane  delusion.  Nor  does  moral  insanity,  unaccompanied 
by  insane  delusion,  vitiate  a  will,  however  unjust,  unnatural, 
or  perverse  the  content,  or  immoral  the  motive  may  be.  But 
such  facts  may  be  shown  together  with  other  evidence  as  bear- 
ing on  the  question  of  unsoundness  of  mind. 

§  18.  Presumption  of  Sanity.  —  The  burden  of  proving  the 
validity  of  a  will  rests  necessarily  upon  him  who  propounds  it 
for  probate.  It  is  obvious  that  he  must  show,  among  other 
things,  the  sanity  of  the  testator,  without  which  his  proof  must 
fail,  and  the  instrument  propounded  cannot  receive  probate. 
But  since  experience  has  shown  that  sanity  or  soundness  is 
the  general  condition  of  the  human  mind,  the  law  permits  the 
proponent  of  the  instrument  to  rely  on  the  presumption  of 
sanity  arising  out  of  this  experience,  instead  of  requiring  affirm- 
ative or  actual  proof  thereof.  If,  therefore,  a  will  is  produced 
and  its  due  execution  proved,  this,  in  the  absence  of  further 
proof,  is  sufficient  to  establish  the  will.  This  is  the  English 
rule,  and  is  the  prevailing  doctrine  in  America,  although  the 
applicability  of  this  presumption  of  sanity,  and  its  extent  in 
support  of  a  last  will,  has  given  rise  to  voluminous  discussions 
in  the  text  books  and  in  the  courts.  Contrary  to  the  general 
doctrine  just  stated,  affirmative  evidence  of  the  testator's 
sanity  is  necessary  in  a  number  of  States;  but  even  in  some  of 
these  States  the  presumption  of  sanity,  although  it  may  not  be 
sufficient  when  entirely  unsupported  by  affirmative  testimony, 
may  be  relied  on  in  aid  of  such  affirmative  testimony,  and  will 
have  its  effect  where  the  testimony  is  doubtful  or  contradictory. 

The   presumption   just   stated   applies   specifically   to   will 


§§  19,  20]    INCAPACITY  ARISING  FROM  MENTAL  DISABILITIES.    17 

contests.  When  wills  are  formally  proven  without  opposition 
in  an  ex  parte  proceeding,  the  statutes  and  method  of  procedure 
in  the  different  States  may  vary  the  rule. 

§  19.  Presumption  of  Continuance  of  Proved  Insanity  —  Lucid 
Intervals.  —  The  will  of  an  insane  person  may  be  valid  if  it 
be  shown  that  it  was  executed  during  a  lucid  interval.  When 
such  evidence  has  been  produced  as  will  satisfy  the  jury  of 
the  testator's  insanity  before  the  execution  of  the  will,  it  is 
indispensable  to  the  validity  of  the  will  that  it  be  shown  to  have 
been  executed  during  a  lucid  interval,  or  upon  cessation, 
whether  temporary  or  permanent,  of  the  malady.  Under  the 
general  rule  that  a  state  of  affairs  once  shown  to  exist  is  sup- 
posed to  continue,  proof  of  the  testator's  insanity  before  (and 
indeed  recently  after)  the  execution  of  the  contested  will, 
throws  the  onus  of  proving  sanity  at  the  time  of  the  execution 
of  the  will  upon  the  proponent.  But  this  presumption  does  not 
exist  where  the  malady  under  which  the  testator  labored  was 
in  its  nature  either  accidental  or  temporary;  nor  is  it  raised  by 
the  suicide  of  the  testator  soon  after  making  his  will. 

If  the  proof  of  insanity  consists  in  the  decree  or  judgment  of 
a  competent  court  declaring  the  testator  to  be  non  compos  mentis 
and  placing  him  under  guardianship,  the  presumption  is,  and 
continues  to  be  until  there  be  a  decree  or  judgment  by  a  com- 
petent court  declaring  his  restoration,  that  he  is  incompetent 
to  make  a  valid  will.  But  this  may  be  rebutted  by  competent 
testimony  of  capacity. 

§  20.  Opinions  of  Non-experts  as  to  Sanity.  —  The  "  opin- 
ion" rule  requires  the  witness  (except  the  expert)  to  limit  his 
testimony  to  concrete  facts,  and  to  refrain  from  the  statement 
of  conclusions.  The  rule  and  its  exceptions  are  the  source  of 
much  discussion  in  the  law  of  evidence.  For  the  subject  here  in 
hand,  the  question  is  whether  in  a  contested  will  case  a  wit- 
ness (not  being  an  expert  on  insanity)  shall  be  permitted  to 
give  his  opinion  as  to  whether  the  testator  was  sane  or  insane, 
based  on  his  acquaintance  with  him.  The  opinion  is  generally 
permitted  to  be  given, ^  although  the  authorities  are  by  no  means 
unanimous  on  this  subject.  The  reason  as  stated  in  the  dissent- 
ing opinion  of  Doe,  J.,  in  Boardman  v.  Woodman,  47  N.  H.  120, 
1  Turner  v.  Am.  L.  &  T.  Co.,  213  U.  S.  257,  260. 


18  TUE   L.\W   OF  DECEDENTS'   ESTATES.  [§§21,22 

144,  is  that  such  witness'  opinions  "are  competent,  because, 
considered  in  connection  with  the  means  of  observation  on 
which  they  are  based,  they  are  the  best  evidence  of  which  the 
case  in  its  nature  is  susceptible.  From  the  nature  of  the  sub- 
ject, it  cannot  generally  be  so  described  by  witnesses  as  to 
enable  others  to  form  an  accurate  judgment  in  regard  to  it." 
But  where  the  opinion  is  admitted,  it  is  generally  required  that 
in  connection  therewith  the  witness  shall  first  state  the  facts 
(known  to  him)  upon  which  that  opinion  is  based. 

But  the  witnesses  who  subscribe  the  testator's  will  at  his 
request  to  give  it  validity,  occupy  a  peculiar  position  in  that  it 
may  be  said  that  the  testator  has  invoked  their  testimony  to  the 
validity  of  his  will.  Such  subscribing  witnesses  are  not  generally 
required  to  state  the  facts  upon  which  they  base  their  opinion; 
but  their  testimony  is  of  course  not  conclusive,  though  entitled 
to  great  regard;  but  the  importance  to  be  attributed  to  the 
mere  opinion  of  a  non-expert  witness  who  has  not  subscribed 
the  will  is  a  different  matter. 

§  21.  Incapacity  in  Consequence  of  Force,  Fraud,  or  Intimida- 
tion. —  A  will  coerced  by  actual  force  employed  upon  the 
testator,  or  by  threats  and  intimidations,  or  obtained  in  conse- 
quence of  fraud  perpetrated  upon  him,  is  self-evidently  void, 
because  it  is  not  his  spontaneous  act  or  free  will.  For  the  same 
reason  the  law  does  not  recognize  that  as  a  valid  testamentary 
act  which  is  the  result  of  external  influence  brought  to  bear 
upon  the  testator  to  an  extent  and  under  circumstances  which 
overpower  his  free  will.  Out  of  this  principle  springs  a  prolific 
source  of  litigation  between  heirs  at  law  and  beneficiaries  of 
testators;  and  no  subject  affords  greater  scope  to  juries  for  the 
indulgence  of  personal  opinions  and  views  of  right  and  wrong. 

§  22.  Incapacity  arising  from  Undue  Influence.  —  Undue  in- 
fluence, to  vitiate  a  will,  must  be  such  as  caused  the  testator 
to  dispose  of  his  property  contrary  to  his  judgment  or  desire 
in  consequence  of  fraudulent  representations  or  importunities 
and  external  pressure  which  he  was  too  weak  to  resist,  and  hence 
always  contains  an  element  of  coercion  or  fraud  destroying  free 
agency;  if  his  judgment  was  not  misled  by  false  representations, 
nor  his  will  overpowered  by  irresistible  importunities,  no  influ- 
ence brought  to  bear  upon  him  can  invalidate  his  will,  because 


§  22]      INCAPACITY  ARISING  FROM  MENTAL  DISABILITIES.  19 

it  is  in  such  case  free  from  the  element  of  coercion  or  fraud. 
No  precise  line  can  be  drawn  distinguishing  legitimate  from 
unlawful  influence,  except  the  general  one  thus  indicated;  but 
it  is  held  that  considerations  addressed  to  a  testator's  good 
feelings,  simply  influencing  his  better  judgment;  the  earnest 
solicitations  of  a  wife,  or  the  exercise  of  influence  springing  from 
family  relations,  or  from  motives  of  duty,  affection,  or  gratitude; 
persuasion,  argument,  or  flattery;  kindness  and  attentions  to 
the  testator;  and  influence  worthily  exerted  for  the  benefit  of 
others,  cannot  be  considered  as  "undue,"  so  as  to  affect  the 
validity  of  a  will  inspired  thereby.  The  mere  opportunity  to 
exercise  influence  over  a  testator  does  not,  even  in  connection 
with  an  unjust  will,  warrant  the  presumption  of  undue  influ- 
ence, in  the  absence  of  affirmative  evidence  of  its  exercise,  where 
the  testator's  mind  is  unimpaired,  and  he  understood  the  con- 
tents of  his  will. 

What  degree  of  influence  will  vitiate  a  will  depends  much 
upon  the  bodily  and  mental  vigor  of  the  testator,  for  that 
which  would  overwhelm  a  mind  weakened  by  sickness,  dissi- 
pation, or  age  might  prove  no  influence  at  all  to  one  of  strong 
mind  in  the  vigor  of  life.  The  question  to  be  decided  is,  whether 
the  testator  had  intelligence  enough  to  detect  the  fraud,  and 
strength  of  will  enough  to  resist  the  influence  brought  to  bear 
upon  him. 

Influence  is  never  presumed  (except  in  the  case  to  be  consid- 
ered below,  between  attorney  and  client,  or  where  the  legatee 
sustained  a  fiduciary  relation  to  the  testator),  but  must  always 
be  proved  by  the  party  alleging  it;  not  generally,  but  as  a 
present  constraint  operating  at  the  time  of  executing  the  will, 
hence  the  ratification  of  a  will  drawn  under  undue  influence, 
when  the  influence  has  been  removed,  cancels  the  objection 
to  the  validity  of  the  will  on  that  ground.  The  proof  must 
exclude  the  hypothesis  of  the  testator's  acting  upon  his  owti 
free  will,  which,  like  other  facts,  may  be  proved  circumstan- 
tially. The  contents  of  the  will,  or  even  of  a  prior  revoked  will, 
may  be  considered  in  connection  with  the  testator's  disposition 
and  affections,  and  declarations  about  it,  as  indicating  whether 
there  was  extraneous  influence;  remembering,  however,  that 
the  unnatural  character  of  the  will  does  not  of  itself  prove  undue 


20  THE  LAW   OF  DECEDENTS'  ESTATES.  [§§  23-25 

influence.  But  gross  inequality  of  distribution  may  be  consid- 
ered as  a  circumstance,  though  not  of  itself  sufHcient,  to  prove 
undue  influence;  and  the  unnatural  character  of  the  will,  when 
supplemented  by  other  suspicious  circumstances,  may  throw 
the  onus  upon  the  favored  beneficiary. 

§  23.  Presumption  against  Legacies  to  Fiduciary  Advisers.  — 
The  rule  that  undue  influence  may  never  be  presumed,  but 
must  be  proved  by  the  person  who  alleges  it,  is  subject  to  an 
exception  in  those  cases  in  which  a  legacy  is  given  by  a  testator 
to  his  attorney,  confidential  adviser,  guardian,  or  other  person 
sustaining  toward  him  any  fiduciary  relation.  Proof  of  the 
existence  of  such  relation  raises  the  presumption  of  undue 
influence,  which  is  fatal  to  the  bequest  unless  rebutted  by  proof 
of  full  deliberation  and  spontaneity  on  the  part  of  the  testator, 
and  good  faith  on  the  part  of  the  legatee.  In  some  States  the 
principle  above  announced,  so  far  as  it  applies  to  wills,  is  mod- 
ified to  the  extent  that  the  mere  fact  that  a  gift  is  made  to  one 
standing  in  a  fiduciary  relation  (no  matter  how  close),  while 
being  a  suspicious  circumstance  calling  for  jealous  scrutiny, 
is  of  itself  insufficient  to  presumptively  invalidate  such  gift; 
there  must  be  coupled  therewith  some  act  of  the  beneficiary, 
however  slight  (depending  on  the  circumstances)  in  some  way 
connecting  him  with  the  will. 

§  24.  Presumption  as  to  Seamen's  Wills.  —  A  similar  excep- 
tion to  the  ordinary  rules  and  presumptions  by  which  the  inten- 
tion of  testators  is  to  be  ascertained  is  made  in  the  case  of 
seamen,  whose  temporary  necessities  are  considered  to  operate 
upon  them  as  a  sort  of  duress  on  the  part  of  those  who  are  to 
furnish  the  supply. 

§  25.  Partial  Avoidance  of  Will  by  Undue  Influence.  —  If  un- 
due influence  or  fraud,  though  exercised  by  one  legatee  only, 
affect  the  whole  will,  the  whole  will  is  void;  but  both  justice 
and  policy  require  that  the  rejection  of  a  legacy  obtained  by 
fraud  or  undue  influence  should  not  invalidate  other  provisions 
in  the  same  will  in  favor  of  legatees  who  have  not  resorted  to 
improper  means.  For  the  like  reason,  an  erasure  or  alteration 
in  the  will,  though  found  to  have  been  made  after  execution, 
does  not  avoid  the  will  in  toto;  if  made  by  a  stranger,  and  the 
original  legacy  be  known,  it  will  have  no  legal  effect,  the  legacy 


§  25]        INCAPACITY   ARISING   FROM   MENTAL   DISABILITY.  21 

will  be  Still  recoverable,  and  ought  to  be  proved  as  it  originally 
stood;  but  if  made  by  the  legatee  himself,  it  will  avoid  the  legacy 
so  altered,  but  cannot  destroy  other  bequests  in  the  will,  either 
to  such  legatee  or  others.  This  doctrine  will  be  further  con- 
sidered in  connection  with  the  probate  of  wills. 


22  THE  LAW   OF  DECEDENTS'  ESTATES,  [§§26,  27 


CHAPTER  V. 

FORM,  EXECUTION,   AND  ATTESTATION   OF  WILLS. 

§  26.  The  Will  is  Ambulatory.  —  The  office  of  a  will  —  more 
accurately  called  last  will  or  testament  —  is  to  control  the  dis- 
position, in  the  manner  desired  by  the  testator,  of  his  property 
after  his  death.  In  its  essential  nature  a  will  is  ambulatory, 
for  it  is  not  operative  before  the  testator's  death,  until  which 
time  it  can  vest  no  rights  in  others,  and  may  therefore  be  re- 
voked or  changed  at  the  testator's  pleasure. 

§  27.  Wills  distinguished  from  Conveyance  of  Future  Inter- 
ests. —It  is  not  merely  possible,  but  not  uncommon,  for  the 
living  to  convey  present  interests  in  their  property  to  take 
effect  only  after  their  death,  which  conveyances  are  not  Avills. 
The  conveyance  by  A  of  his  realty  to  a  trustee  to  hold  for  A 
for  life  with  remainder  to  B  in  fee  furnishes  an  illustration. 
At  A's  death  the  same  result  is  practically  accomplished  as  if 
A  had  made  B  his  devisee.  But  a  vital  practical  distinction  as 
to  the  value  of  such  documents  lies  in  this :  Had  A  made  a  will, 
it  would  have  been  ambulatory:  a  mere  nothing  till  A's  death 
called  it  into  legal  existence;  and  consequently  A  could  have 
made  any  other  disposition  of  the  property  he  saw  fit  after 
the  execution  of  such  a  will.  But  had  A  made  a  valid  convey- 
ance, vesting  at  the  time  an  interest  in  B  after  A's  death, 
though  of  course  the  enjoyment  would  be  postponed,  B's  rights 
thus  acquired  could  not  be  divested  by  any  act  of  A's,  testa- 
mentary or  otherwise. 

Difficulties  may  arise  In  determining  whether  the  document 
in  question  was  meant  as  a  testamentary  disposition  merely, 
creating  no  present  interest,  or  whether,  at  the  time  of  the  exe- 
cution of  the  instrument,  it  was  meant  to  create  an  interest 
the  enjojTnent  of  which  was  to  be  postponed  till  the  death  of 
the  party  executing  the  instrument. 

The  question  most  frequently  arising  when  the  instrument 


§  2S]       FORM,   EXECUTION,   AND  ATTESTATION  OF  WILLS.  23 

on  its  face  is  held  to  be  capable  of  interpretation  as  a  present 
conveyance  is,  whether  it  has  been  delivered.  A  deed,  however 
solemn  in  form,  is  nugatory  if  not  delivered,  and  can  only 
stand  as  a  will,  provided  of  course  that  it  complies  with  the 
requisites  for  such  an  instrument.  The  matter  frequently 
takes  a  practical  aspect,  when  an  instrument  which  for  some 
technical  reason  cannot  stand  as  a  will,  has  been  given  to  a 
third  person  with  directions  more  or  less  positive  or  qualified 
for  delivery  after  the  maker's  death.  It  can  then  be  good  only 
as  a  present  conveyance.  What  constitutes  delivery  of  a  deed 
pertains  to  the  law  of  real  estate,  and  cannot  be  discussed  here 
further  than  by  calling  attention  to  the  practical  test  of  asking 
whether  the  maker  has  lost  control  of  the  instrument.  Had  he 
the  right,  under  the  circumstances  of  the  case,  to  get  the  in- 
strument back,  in  his  life-time,  from  its  custodian?  If  so,  it 
may  be  a  will,  but  is  not  a  deed. 

The  practical  importance  of  the  distinction  between  a  con- 
veyance and  a  will  becomes  prominent  when  it  is  remembered 
that  the  formal  requirements  as  to  these  instruments  vary. 
A  document  may  be  good  as  a  deed  which  is  bad  as  a  will, 
and  vice  versa.  Thus  a  deed  in  most  States  still  requires  a 
seal:  a  will  does  not;  a  will  must  have  subscribing  witnesses;  in 
these  days  a  deed  generally  need  not. 

§  28.  Conditional  Wills.  —A  will  is  usually  absolute  in  that 
it  is  intended  to  become  operative  at  the  testator's  death;  but 
it  may  be  made  conditional  upon  the  happening  of  some  other 
event,  and  is  then  void  unless  such  event  happen.  In  walls 
containing  reference  to  some  other  event  additional  to  death, 
it  is  important  to  ascertain  whether  it  is  the  intention  of  the 
testator  to  make  the  validity  of  the  will  dependent  upon  the 
condition,  or  merely  to  state  the  circumstances  inducing  him 
to  make  the  testamentary  provision.  In  such  interpretation 
courts,  while  recognizing  the  danger  of  going  beyond  the  literal 
and  grammatical  meaning  of  words,  invoke  the  principle  that 
the  primary  import  of  the  words  is  modified  and  controlled 
by  the  dominant  testamentary  intention  to  be  gathered  from 
the  instrument  as  a  whole.  This  is  illustrated  in  the  case  of 
Eaton  V.  Brown,  193  U.  S.  411.  The  will  in  question  in  that 
case  began:  "I  am  going  on  a  journey,  and  may  not  ever  return. 


24  THE  LAW   OF  DECEDENTS'  ESTATES.  [§§  29,  30 

And  if  I  do  not,  this  is  my  last  request."  As  the  writer  returned 
safely  from  the  journey,  dying  afterwards,  the  will  would  seem 
bad  on  literal  interpretation.  But  the  will  disposed  of  all  the 
property  by  two  gifts  which  indicated  an  abiding  and  uncon- 
ditioned intent  —  one,  to  a  church;  the  other,  to  a  person  whom 
she  called  her  adopted  son.  The  will  concluded:  "All  I  have 
is  my  own  hard  earnings;  and  I  propose  to  leave  it  to  whom  I 
please."  This  self-justification  was  viewed  by  the  court  as 
explanatory  of  an  unqualified  disposition,  having  no  connection 
with  the  return  from  a  journey.  The  court  accordingly  con- 
strued the  initial  clause  as  stating  the  inducement  for  the  act, 
and  not  a  condition;  and  upheld  the  will.^ 

The  question  may  also  arise,  when  the  language  clearly 
imports  a  condition,  whether  it  applies  to  the  whole  will,  or 
affects  only  some  part  of  it. 

§  29.  Joint  and  Mutual  Wills.  —  The  term  mutual  will  is 
used  to  describe  the  instrument  in  which  two  join,  each  dis- 
posing of  his  property  absolutely  to  the  other.  On  the  first 
death  the  whole  property  belongs  to  the  survivor  to  dispose  of 
as  he  sees  fit.  The  joint  will  disposes  of  the  property  of  two 
persons  in  such  a  way  that  third  persons  are  also  beneficiaries. 
The  survivor  of  the  joint  makers  takes  the  property  subject  to 
the  future  dispositions  of  the  joint  will. 

From  the  ambulatory  nature  of  a  will  it  is  clear  that  any 
restraint  which  a  single  testator  imposes  on  himself  by  the  terms 
of  his  own  will  against  any  other  disposition  of  his  property  than 
is  therein  set  forth  is  nugatory.  A  subsequent  contradictory 
will  must  control. 

From  this  inherent  revocability  of  wills  it  has  been  urged,  as 
appears  in  a  few  decisions  and  various  dicta,  that  joint  wills 
at  least  conflict  with  this  rule,  and  are  unknown  to  the  common 
law.  The  weight  of  authority,  however,  recognizes  joint  wills 
and  mutual  wills  as  valid.  Where  both  parties  thereto  act  in 
accordance  with  the  instrument,  it  is  believed  no  court  would 
refuse  to-day  to  recognize  the  ultimate  titles  thereunder. 

§  30.  Joint  Wills  as  Contracts.  —  But  the  contractual  ele- 
ment in  such  a  joint  will  requires  further  consideration.  In 
a  joint  will  the  disposition  of  his  property  made  by  one  maker 
^  For  another  illustration  sec  French  v.  French,  14  W.  Va.  458. 


§  31]       FORM,   EXECUTION,   AND  ATTESTATION  OF  WILLS.  25 

thereof  furnishes  a  consideration  for  the  disposition  made  of 
his  property  by  the  other.  A  and  B  join  in  a  will,  each  conve^dng 
his  property  to  the  other  for  life  with  remainder  in  both  estates 
to  C  in  fee.  A  dying  first,  can  the  survivor,  B,  make  a  will  in 
favor  of  D,  ignoring  C?  To  so  hold  would  be  shocking  to  the 
moral  sense.  In  legal  view  A  and  B  made  the  will  on  reciprocal 
considerations.  When  the  contract  is  wholly  performed  on 
one  side,  which  is  accomplished  when  the  survivor  takes  the 
property  under  the  will  of  the  pre-deceased,  the  whole  is  held 
by  the  sur\4vor  in  trust.  The  ultimate  beneficiary  of  the  joint 
will  is  the  cestui  que  trust,  and  as  such  can  compel  in  equity 
the  carrying  out  of  the  provisions  of  the  joint  will. 

It  is  not  necessary  to  say  that  the  will  of  the  survivor  in 
contravention  of  the  joint  will  is  a  nullity.  There  seems  to  be 
no  reason  why  the  will  of  the  survivor  should  not  be  good  as 
to  all  parties  save  the  beneficiaries  of  the  joint  will,  just  as  the 
conveyance  of  any  other  trustee  of  an  equitable  trust  with 
legal  title  is  good  enough,  save  as  against  the  cestui  que  trust. 
Though  the  survivor's  new  will  may  be  probated  as  such,  the 
ultimate  beneficiary  under  the  joint  will  may  enforce  his  right 
in  equity  like  any  other  cestui  que  trust.  It  is  true  the  cestui 
que  trust  in  other  cases  may  be  hampered  by  the  necessity  of 
showing  that  the  purchaser  from  the  trustee  took  wath  notice. 
But  this  requirement  has  no  application  in  the  case  of  a  will 
by  the  survivor  in  contravention  of  the  terms  of  a  prior  joint 
will  to  which  he  was  a  party.  For  the  beneficiary  under  the  will 
of  the  survivor  is  not  a  "purchaser";  he  stands  in  the  shoes  of 
his  testator,  and  is  held  without  notice  of  the  trust.  This  view 
fully  recognizes  the  ambulatory  nature  of  the  will,  as  will, 
without  militating  against  the  practical  remedy  of  the  bene- 
ficiary of  the  joint  will. 

§  31.  Separate  Wills  in  Pursuance  of  Contract.  —  If  the  will  of 
two  persons  rests  on  reciprocal  considerations,  it  can  make  no 
difference  in  principle  whether  the  wills  are  put  in  one  joint 
document,  or  whether  each  of  the  parties  makes  a  separate  will 
in  accordance  with  the  agreement.  A  practical  distinction, 
however,  is  important.  If  the  will  is  joint,  it  may  carry  on  its 
face  convincing  evidence  that  it  rests  on  reciprocal  legal  con- 
siderations.   But  in  the  case  of  identity  in  the  terms  of  separate 


2G  THE  LiW  OF  DECEDENTS'  ESTATES.  [§§32,  33 

wills,  though  made  at  the  same  time,  upon  consultation,  it 
may  well  be  that  the  parties  have  simply  arrived  at  a  common 
conclusion,  without  any  element  of  reciprocal  consideration. 
The  consideration  in  such  case  must  be  affirmatively  shown. 
In  absence  thereof,  either  of  the  wills  is  revocable  at  any  time, 
in  any  way  the  maker  wishes.^ 

§  32.  Contracts  to  make  Particular  Provision  by  Will.  —  The 
proposition  underhing  the  foregoing  paragraphs,  stated  in  its 
broadest  terms,  is,  that  a  person  can  make  a  contract  or  agree- 
ment, enforcible  in  equity',  for  disposition  of  his  property  after 
death  which  will  override  any  contravening  will.  The  doctrine 
is  recognized  in  this  broad  form  and  finds  frequent  application 
in  cases  where  services  were  rendered  to  the  testator  in  his  life- 
time or  where  infants  have  been  taken  from  parents  or  others 
in  charge  of  them  in  reliance  upon  a  promise  by  the  person  to 
whom  the  services  were  rendered  or  to  whom  the  child  is  thus 
given,  to  make  suitable  compensation  or  provision  by  will. 
It  often  happens  that  after  the  person  has  rendered  such  ser- 
vices or  the  child  has  discharged  all  the  duties  of  the  assumed 
filial  relation  till  the  testator's  death,  he  is  left  without  pro- 
vision. Numerous  authorities  uphold  the  right  of  the  promisee 
or  child  to  recover  from  the  promisor's  estate  according 
to  the  promise,  whether  the  promisor  died  intestate,  or  made 
a  will  conflicting  with  the  promise.  But  courts  wisely  decline 
to  grant  relief  in  such  cases  unless  the  contract  be  established 
in  definite  terms  by  clear  and  convincing  proof.^ 

§  33.  No  Formality  as  to  Will's  Contents.  —  Passing  for  fu- 
ture consideration  the  limited  possibilities  of  oral  wills,  there 
are  legal  requirements  for  wTitten  wills  as  to  signature  and  attes- 
tation which  must  be  strictly  complied  with,  as  discussed  in 
subsequent  sections.  Apart  from  these  prescriptions  a  written 
will  is  not  bound  to  any  set  method  of  expression.  The  instru- 
ment stands  as  a  will,  if  it  has  in  any  language  the  essentials 
of  a  will :  an  expression  of  a  present  intention  to  make  disposition 
of  property  at  death,  revocable  at  pleasure. 

If  then  the  instrument  is  really  a  vn\\,  as  above  explained, 
it  may  be  drawTi  in  the  form  of  a  deed  poll,  an  indenture,  a  deed 

*  Edson  V.  Parsons,  155  N.  Y.  555. 

2  See  note  to  Pfluger  v.  Pultz,  43  N.  J.  Eq.  440. 


§§  34,  35]     FORM,   EXECUTION,   AND  ATTESTATION  OF  WILLS.     27 

of  gift,  a  warranty  deed,  a  marriage  settlement,  letters,  drafts 
on  bankers,  assignment  of  a  bill,  endorsement  on  bills,  notes, 
or  stocks,  promissory  notes,  notes  payable  by  executors  or  ad- 
ministrators to  evade  the  legacy  duty,  or  power  of  attorney. 
It  may  be  in  part  a  deed  or  other  contract  and  in  part  a  will; 
or  it  may  be  supposed  to  operate  as  a  deed,  bond,  or  other 
instrument  of  gift,  and  yet,  though  inoperative  as  such,  be 
valid  as  a  testamentary  disposition  —  always  provided  it  con- 
tains the  essentials  of  a  will.^ 

§  34.  Nor  as  to  Writing  Material  or  Language.  —  A  will  may 
be  written  or  printed,  or  partly  ^vritten  and  partly  printed, 
engraved,  or  lithographed.  Blank  spaces  left  in  the  will  do  not 
necessarily  invalidate  it;  but  it  is  better  to  avoid  them,  because 
they  facilitate  fraudulent  interlineations.  The  \\Titing  may  be 
in  ink  or  in  pencil;  but  when  a  question  arises  whether  the 
testator  intended  the  paper  as  testamentary,  or  merely  prepar- 
atory to  a  more  formal  disposition,  the  material  with  which  it 
is  written  becomes  a  most  important  circumstance,  and  the 
general  presumption  and  probability  is  held  to  be,  that,  where 
alterations  are  made  in  pencil,  they  are  deliberative;  where 
in  ink,  they  are  final  and  absolute. 

So  too  the  will  is  valid  whether  written  in  the  language  used 
in  the  forum,  or  in  a  foreign  tongue.  A  will  duly  executed  with 
knowledge  of  its  contents  is  valid  though  never  read  by  the 
testator,  or  written  in  a  language  unknown  to  him. 

§  35.  The  Signature.  —  Without  the  testator's  signature  the 
written  instrument,  so  far  as  it  is  offered  as  a  will,  is  a  nullity. 
This  rests  on  the  English  Statute  of  Frauds,  under  which  all 
de\dses  of  lands  and  tenements  were  required  to  be  in  WTiting 
and  signed  by  the  party  de\asing  the  same,  or  by  some  person 
in  his  presence  and  by  his  express  direction.  This  provision  is 
incorporated  into  the  statutes  of  nearly  all  the  States.  The 
stringency  of  the  requirement  is  illustrated  by  the  case  of  two 
persons,  intending  to  make  wills  in  favor  of  each  other,  and 
precisely  alike,  mutatis  mutandis,  each  by  mistake  signing  the 
other's  intended  will.  There  is  in  such  case  no  valid  execution 
of  either  document. 

The  making  of  a  mark  by  the  testator  was  held  sufficient  as 
^  For  illustrations  and  cases  see  Woemer  on  Administration,  §  38. 


28  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  35 

a  signature  under  the  Statute  of  Frauds,  without  reference  to 
the  question  whether  he  could  write  at  the  time.  It  is  held 
equally  sufficient  under  the  later  English  Wills  Act,  and  in  the 
several  States.  The  mark  of  the  testator  has  been  held  a  proper 
signature,  although  the  name  was  improperly  written  by  the 
scrivener;  a  stamp  which  had  been  used  by  the  testator  in 
place  of  his  signature  to  letters  and  other  documents  was  held 
a  sufficient  execution  by  mark. 

Under  the  English  Statute  of  Frauds  it  was  held  that  where 
every  part  of  the  will  is  written  by  the  testator  himself,  the 
name  appearing  in  the  body,  or  as  the  usual  exordium  —  "  I, 
A  B,  do  make,"  etc.  —  is  a  sufficient  signing  if  the  testator  so 
intended.  Signing  does  not  necessarily  imply  subscription  of 
the  name.  This  is  the  rule  in  the  United  States  wherever  the 
statute  follows  the  English  form;  but  it  must  be  noted  that  in 
many  States  the  statute  requires  the  signature  to  be  "at  the 
end"  of  the  will. 

Where  the  will  is  written  on  separate  pieces  or  sheets  of  paper, 
not  physically  connected,  it  is  sufficient  for  the  probate  thereof 
that  it  be  signed  on  one  of  them,  if  it  appear  by  the  contents, 
or  by  other  proof,  that  the  testator  included  all  of  them  as 
constituting  the  will  when  he  signed. 

But  words  of  reference  will  not  suffice  to  incorporate  into  it 
the  contents  of  an  extraneous  paper,  unless  it  can  be  clearly 
shown  that,  at  the  time  the  will  was  executed,  such  paper  was 
actually  in  existence. 

The  principle  that  the  signature  of  the  maker  of  any  instru- 
ment affixed  to  it  by  another  in  the  maker's  presence  and  by  his 
express  direction  is  valid,  applies  to  wills.  It  is  held  that  the 
testator's  hand  may  be  guided  to  make  the  mark,  or  write  his 
name,  and  that  this  constitutes  a  valid  signature  by  the  testa- 
tor; and  the  acknowledgment  of  the  execution  of  the  instru- 
ment as  a  will  is  a  sufficient  direction,  although  signed  by 
another.  But  if  the  testator  directs  another  person  to  sign  for 
him,  and  intends  to  affix  his  mark  in  completion  of  the  signature, 
the  will  is  not  properly  signed  unless  the  mark  is  made. 

The  rule  is  of  course  subject  to  statutory  control.  Thus  in 
New  York  and  New  Jersey  the  testator  must  sign  in  person ;  and 
in  some  States  the  person  signing  the  testator's  name  is  re- 


§  36]       FORM,   EXECUTION,   AND  ATTESTATION   OF  WILLS.  29 

quired  to  sign  his  own  as  witness  with  the  statement  that  he 
wrote  the  testator's  name  at  his  request.  In  such  cases  an 
omission  to  comply  with  statutory  requirements  is  fatal  to  the 
will. 

§  36.  Attestation.  —  The  English  Statute  of  Frauds  required 
the  attestation  of  wills  by  "three  or  four  credible  witnesses"  by 
subscribing  the  same  in  the  presence  of  the  testator.  A  similar 
provision  is  incorporated  into  the  statutes  of  all  the  States, 
varying,  however,  as  to  the  number  of  witnesses  required,  and 
as  to  the  further  requirement  that  "  the  witnesses  shall  subscribe 
in  the  presence  of  each  other." 

When  it  is  necessary  to  ascertain  the  law  in  any  concrete  case, 
on  this  point,  as  indeed  on  any  other,  the  statute  of  the  State 
in  question  must  be  consulted.  The  prevailing  theory,  with 
mention  of  some  marked  variations  therefrom,  is  all  that  can 
be  attempted  in  this  treatise. 

The  statutes  of  most  States  now  require  not  more  than  two 
witnesses. 

With  the  exception  of  Arkansas,  New  York,  and  Pennsyl- 
vania, the  requirement  that  the  witnesses  shall  subscribe  in 
the  presence  of  the  testator  seems  to  be  law  in  all  the  States. 
To  constitute  "presence"  in  the  sense  of  the  English  Statute  of 
Frauds  and  of  the  American  statutes  on  the  subject  of  wills,  it 
is  essential  that  the  testator  should  be  mentally  capable  of 
recognizing  the  act  which  is  being  performed  before  him;  for 
if  this  power  be  wanting,  his  corporeal  presence  will  not  suffice. 
It  is  not  essential  that  the  testator  should  actually  see  the  wit- 
ness attest  the  will;  but  he  must  be  in  such  a  situation  that  he 
might  see,  and  it  will  then  be  presumed  that  he  did  see.  The 
design  of  the  statute  is  said  to  be  to  prevent  the  substitution 
of  a  surreptitious  will. 

In  some  States  {e.  g.,  Louisiana,  Vermont,  South  Carolina, 
and  New  Jersey)  the  witnesses  are  required  to  sign  in  presence 
of  each  other.  This  is  not  required  by  the  English  Statute,  nor 
by  the  laws  of  the  other  States. 

In  the  absence  of  clear  proof  that  the  witness  or  witnesses 
signed  before  the  signing  of  the  testator,  it  should  be  presumed 
that  the  testator  signed  first.  But  it  is  held  that  it  is  essential 
to  the  due  execution  of  the  will  that  the  signature  of  the  testator 


30  THE  LAW   OF  DECEDENTS'   ESTATES.  [§  37 

should  precede,  in  point  of  time,  the  signature  of  the  attesting 
witnesses.  Some  cases  have  appHed  this  ruUng  when  the  sign- 
ing and  attestation  are  on  the  same  occasion  and  part  of  the 
same  transaction.  But  the  better  rule  would  seem  to  be  to 
view  such  signatures  as  contemporaneous  in  legal  contempla- 
tion, and  sufficient. 

In  the  absence  of  statutory  direction  (such  as  the  requirement 
of  some  States  that  the  witnesses,  as  well  as  the  testator,  sign 
at  the  end  of  the  instrument)  it  is  not  material  in  what  part  of  a 
will  the  subscribing  witnesses  sign  their  names,  if  it  is  done 
after  the  subscription  and  acknowledgment  by  the  testator, 
and  with  the  purpose  of  attesting  it  as  subscribing  witnesses. 

By  the  English  Wills  Act  and  under  American  statutes  gen- 
erally, it  is  required  that  the  testator  shall  sign  or  acknowledge 
his  signature  in  presence  of  the  attesting  witnesses;  and  in 
most  States  they  must  also  know  at  the  time  that  he  signed 
the  instrument  as  and  for  his  last  will.  Where  this  is  the  law 
no  set  affirmative  declaration  by  the  testator  is  absolutely 
necessary ;  any  indication  by  him  to  the  witnesses  of  his  knowl- 
edge that  the  instrument  to  be  attested  by  them  is  his  last 
will,  is  sufficient.  In  England  and  a  number  of  States,  however, 
the  witnesses  need  not  know  the  character  of  the  paper  attested 
by  them;  the  theory  being  that  the  attestation  is  to  the  signa- 
ture, not  to  the  document  proposed  as  a  will. 

The  witnesses,  like  the  testator,  may  subscribe  by  mark,  or 
by  their  initials  if  intended  for  their  mark;  or,  if  they  cannot 
write,  the  hand  may  be  guided  by  another  person.  An  attesta- 
tion clause,  reciting  over  the  witness'  signature  all  essential 
facts  to  constitute  valid  attestation  is  nowhere  required  by  the 
law;  though  its  value  at  the  proof  of  the  will,  in  refreshing  the 
memory  of  the  witness,  or  even  committing  him  to  its  state- 
ments, is  obvious, 

§  37.  Change  in  Law  as  to  Testamentary  Formalities.  —  It 
may  be  stated,  in  this  connection,  that  where  there  is  a  change 
in  the  law  governing  the  execution  of  a  will,  made  in  the  interim 
between  its  execution  and  the  testator's  death,  the  question 
arises  as  to  which  law  governs.  It  is  held  in  some  States  that 
the  law  in  force  when  the  will  is  executed  must  be  complied 
with;  but  the  stronger  reasoning  and  weight  of  authority  leads 


§  38]      FORM,  EXECUTION,   AND  ATTESTATION  OF  WILLS.  31 

to  the  conclusion  that  the  will  should  be  executed  in  conformity 
to  the  law  in  force  at  the  testator's  death. 

§  38.  Competency  of  Attesting  Witnesses.  —  The  statutes 
mostly  require  the  witnesses  to  be  "credible"  or  "competent"; 
by  which  is  meant  that  they  must  be  competent  persons  to 
testify  in  a  court  of  justice,  not  being  disqualified  by  mental 
imbecility,  interest,  crime,  or  marital  relation.  That  the  com- 
petency of  the  witnesses  as  attesting  witnesses  must  refer  to 
the  time  of  attestation  seems  clear  enough  on  principle;  else 
the  validity  of  the  will  would  be  made  dependent  on  circum- 
stances be^'ond  the  control  of  the  testator,  and  enable  the 
attesting  witnesses,  by  rendering  themselves  incompetent,  to 
defeat  it.  It  is  so  enacted  in  most  of  the  States;  and  where  not 
enacted  by  statute,  it  is  nevertheless  generally  so  held  by  the 
courts. 

The  interest  which  renders  an  attesting  witness  incompetent 
is  that  which  at  common  law  would  disqualify  him  from  testi- 
fying in  a  suit  depending  on  the  establishment  of  the  will.  A 
gift  to  husband  or  wife  of  a  subscribing  witness  would  disqualify, 
while  a  gift  to  the  witness  as  trustee  without  any  interest  as 
cestui  que  trust  would  not. 

Statutes  in  all  States  have  put  an  end  to  the  disqualification 
through  interest,  so  far  as  evidence  in  court  is  concerned,  but 
these  statutes  do  not  apply  to  the  qualification  of  witnesses 
to  a  will. 

It  was  finally  held  by  the  courts  that  a  witness  rendered  in- 
competent by  reason  of  his  interest  under  the  will  could  be 
restored  to  competency  by  destroying  his  interest  by  means  of 
a  release  before  testifying;  but  an  assignment  of  his  interest 
was  not  enough.  This  procedure  is  sanctioned  by  statute  in 
several  States.  As  the  witness  could  not  be  compelled  to  release, 
parties  interested  under  the  will  were  still  at  the  mercy  of  the 
witness.  A  more  efficient  remedy  was  pro\'ided  by  the  25 
George  II,  followed  in  most  of  the  States,  which  destroys  any 
interest  which  a  subscribing  witness  would  acquire  under  the 
will.  Hence  interest  in  the  probate  of  the  will,  under  such  stat- 
utes, does  not  disqualify  an  attesting  witness;  but  the  fact 
of  attesting  disqualifies  the  witness  from  being  a  beneficiary 
legatee  or  devisee.    He  now  can  be  compelled  to  testify. 


32  THE   L-\W   OF  DECEDENTS'   ESTATES.  [§  39 

It  is  also  provided  by  the  statutes  of  most  of  the  States  that 
where  an  attesting  witness,  to  whom  a  gift  is  made  in  the  will, 
would  have  taken  a  share  of  the  estate  in  the  event  of  intestacy, 
he  is  not  only  a  competent  witness,  but  may  also  take  under 
the  will  so  much  as  would  have  come  to  him  in  case  of  intestacy, 
not  exceeding  however  the  gift  in  the  will.  Some  courts  have 
reached  this  decision  independent  of  statute. 

In  a  great  number  of  States  it  is  enacted  that  where  a  will 
contains  a  devise  or  legacy  to  an  attesting  witness,  but  is  at- 
tested by  a  sufficient  number  of  competent  witnesses  in  addi- 
tion to  such  devisee  or  legatee,  it  may  be  proved  without  his 
testimony;  and  held  good,  including  the  gift  to  the  attesting 
witness. 

^Vhethfe^  the  appointment  by  the  will  of  one  who  is  subscrib- 
ing witness  as  executor  works  disqualification  of  the  witness 
has  been  variously  decided.  The  executor  at  common  law 
could  obtain  advantages  from  his  position,  beyond  compensation 
for  his  ser\nces  (which  indeed  was  denied).  In  several  States 
it  has  accordingly  been  held  that  the  person  named  as  executor 
is  disqualified  as  attesting  witness  to  the  will.  But  in  the  great 
majority  of  States  he  is  a  competent  witness  —  either  on  the 
ground  that  the  commissions  to  which  he  is  entitled  constitute 
no  "beneficial  legacy,"  but  are  given  as  compensation  for  ser- 
vices rendered;  or, because  such  witness  is  rendered  incompetent 
(by  the  statute  avoiding  such  beneficial  legacies)  to  assume  the 
office  of  executor. 

§  39.  Holographic  Wills.  —  Holographic  (or  olographic)  wills 
are  such  as  are  wholly  ^T-itten  by  the  testator  in  person. 
In  most  States  they  do  not  differ  in  any  particular  from  wills 
manually  written  by  one  not  the  testator.  But  in  several 
States  such  holographic  wills,  following  the  civil  law,  are  spe- 
cifically recognized  by  statute,  and  distinguished  from  other  wills 
in  that  they  require  less,  or  no  formality,  of  attestation.  But, 
though  the  statute  of  a  State  may  refer  to  and  recognize  holo- 
graphic wills,  yet,  unless  it  dispenses  with  the  necessity  of 
witnesses,  it  must  be  proved  by  witnesses.  Only  by  strict 
compliance  with  every  statutory  requisite  can  a  vnW  be  estab- 
lished as  holographic.  Thus  where  the  statute  requires  the 
date  to  be  in  the  document  the  omission  of  a  figure  from  the 


§§  40,  41]     FOrai,   EXECUTION,  AND  ATTESTATION   OF  WILLS.     33 

year  has  been  held  to  invahdate  the  holographic  character  of 
the  instrument.^ 

§  40.  Nuncupative  Wills.  —  ^\^lile,  as  has  been  before  stated, 
the  power  to  dispose  of  legal  estates  in  realty  did  not  exist 
from  the  Conquest  to  the  Statute  of  Wills  (32  Henry  VIII), 
personalty  could  be  disposed  of  by  will  at  all  times.  Not  only 
this,  but  the  testamentary  disposition  of  personalty  required 
no  writing  until  the  Statute  of  Frauds.  These  testamentary 
declarations  in  presence  of  a  witness  or  witnesses  are  knowTi  as 
nuncupative  wills.  Such  oral  testaments  of  personalty  were 
confined  within  very  narrow  limits  by  the  Statute  of  Frauds, 
"  for  the  prevention  of  fraudulent  practices  in  setting  up  nun- 
cupative wills,  which  have  been  the  occasion  of  much  perjury." 
The  subject  is  ever;ywhere  regulated  by  statutes  which  vary 
greatly.  Only  some  leading  lines  of  such  legislation  can  here 
be  mentioned. 

The  English  Statute  of  Frauds  affected  such  nuncupative 
wills  only  as  disposed  of  property  exceeding  £50  in  value; 
where  the  property  bequeathed  amounted  to  less,  the  common 
law  still  governed.  In  England  1  Vict.  c.  26  does  away  with 
nuncupative  wills  altogether,  except  as  to  soldiers  and  mariners 
in  actual  service. 

Following  the  Statute  of  Frauds,  a  number  of  States  leave 
wills  of  personalty  up  to  a  certain  point  as  at  common  law,  and 
apply  their  restrictions  to  wills  disposing  of  larger  amounts. 
The  amount  that  can  be  disposed  of  varies  from  S30  in  Texas 
to  $300  in  Maryland. 

Another  class  of  States  permits  nuncupative  wills  only  for 
property  not  exceeding  a  certain  value,  varying  from  81000  in 
California  to  $100  in  Indiana.  In  these  States  the  statutory 
requirements  must  be  complied  with,  and  the  common-law 
will  is  abolished,  save,  generally,  for  soldiers  and  sailors. 

Another  class  of  statutes  sets  no  financial  limit  on  nuncupa- 
tive wills  which  comply  with  the  respective  statutes,  thus  also 
abolishing  the  unwritten  common-law  will. 

In  other  States  all  nuncupative  wills  are  abolished,  save  as 
to  soldiers  and  sailors. 

§  41.  Formal  Requisites  for  Nuncupative  Wills.  —  It  will  thus 
1  Noyes  Estate,  40  Mont.  190. 


34  THE  LAW  OF  DECEDENTS'  ESTATES.  [§  41 

be  seen  that  the  old  nuncupative  will  has  been  substantially 
abolished,  existing  only  in  a  few  States  for  inconsiderable 
amounts,  and  applying  in  all  States  to  soldiers  and  sailors,  as 
will  presently  be  mentioned.  With  these  few  exceptions  oral 
wills  of  personalty  can  only  be  made  in  strict  compliance  with 
the  statutes  of  the  respective  States,  which,  with  great  variation 
in  detail,  are  based  in  the  main  on  the  provisions  of  the  English 
Statute  of  Frauds.  Under  this  statute  it  is  necessary  that  the 
words  spoken  by  the  testator  be  proved  on  oath  by  compe- 
tent witnesses  "who  were  present  at  the  making  thereof."  It 
also  requires  that  the  testator  "bid  the  persons  present,  or 
some  of  them,  bear  witness  that  such  was  his  will,  or  to  that 
effect." 

The  rogatio  testium,  or  request  of  the  testator  to  bear  witness 
to  the  will  he  is  about  to  pronounce,  is  an  essential  feature  of  all 
nuncupative  wills,  but  any  form  of  expression,  however  im- 
perfectly uttered,  so  that  it  conveys  to  the  minds  of  those  to 
whom  it  is  addressed  the  idea  that  he  desires  them,  or  some  of 
them,  to  bear  witness  to  the  disposition  he  is  about  to  make  of 
his  property,  is  sufficient.  It  has  been  decided  in  Pennsylvania 
that  a  look  is  not  a  sufficient  rogatio  testium.  The  animuni 
testandi  must  be  proved  as  clearly,  and  with  the  same  certainty, 
at  least,  as  in  wills  written  and  attested  in  writing. 

"That  such  nuncupative  will  was  made  in  the  time  of  the 
last  sickness  of  the  deceased,  in  the  house  of  his  habitation  or 
dwelling,  or  where  he  or  she  hath  been  resident  for  the  space 
of  ten  days  or  more  next  before  the  making  of  such  will,  except 
where  such  person  was  surprised  or  taken  sick  being  from 
his  own  home,  and  died  before  he  returned  to  the  place  of 
his  or  her  dwelling."  This  provision  has,  of  course,  no  applica- 
tion to  soldiers  or  mariners;  but  with  this  exception  has  been 
substantially  incorporated  into  the  statutes  of  nearly  all  the 
States. 

The  Statute  of  Frauds  prohibits  the  introduction  of  any  tes- 
timony to  prove  testamentary  words  after  the  expiration  of 
six  months  from  the  time  they  were  spoken,  "  except  the  said 
testimony,  or  the  substance  thereof,  were  committed  to  writing 
within  six  days  after  the  making  of  said  will." 

While  the  substance  of  this  provision  is  embodied  in  the 


§§  42,  43]    FORM,   EXECUTION,   AND  ATTESTATION  OF  WILLS.    35 

statutes  of  most  States,  there  is  considerable  diversity  as  to 
the  time  allowed  for  the  reduction  of  the  testamentary  words 
into  writing. 

Nuncupative  wills  are  watched  by  the  courts  with  a  jealous 
eye.  Aside  from  the  statutory  restrictions  placed  upon  them, 
the  ease  with  which  frauds  may  be  accomplished  in  establishing 
them  demands  close  scrutiny  of  the  testimony  offered,  and 
strict  proof  of  every  fact  upon  which  their  validity  is  made 
to  depend.  Where  several  witnesses  are  required  by  the  stat- 
ute, each  one  must  prove  all  the  facts,  and  all  must  be  present 
at  the  same  time. 

§  42.  Wills  of  Soldiers  and  Mariners.  —  Wills  made  by  sol- 
diers in  actual  military  service  and  mariners  at  sea  are  con- 
strued with  greater  liberality  than  nuncupative  wills  of  other 
persons.  By  the  civil  law  the  ordinary  formalities  of  executing 
nuncupative  wills  were  dispensed  with  in  favor  of  soldiers; 
their  wills  were  held  valid,  although  they  should  neither  call 
the  legal  number  of  witnesses,  nor  observe  any  other  of  the 
ordinary  solemnities  in  the  execution  of  such  instriunents. 
This  privilege  was  also  extended  to  the  naval  service;  and  has 
been  generally  adopted  among  civilized  nations,  coming  to  us 
through  the  common  law,  left  substantially  unaffected  by  the 
English  Statute  of  Frauds. 

In  the  absence  of  statutory  regulations  on  the  subject,  the 
usual  conditions  to  nuncupative  Avills  are  not  applicable  to  the 
wills  of  soldiers  or  mariners,  the  single  question  being  whether 
the  deceased  comes  within  the  class  of  persons  under  consider- 
ation, namely,  whether  he  was  a  soldier  in  actual  service  or  a 
mariner  at  sea,  of  whatever  rank  or  grade. 

Nuncupative  wills  of  soldiers  and  mariners  may  be  proved, 
like  wills  of  personalty  at  common  law,  by  one  witness.^ 

§  43.  Codicils.  —  A  codicil  is  some  addition  to  or  qualification 
of  a  last  will.  Whatever  may  have  been  the  origin  of  this  species 
of  testamentary  disposition,  they  have,  in  America,  no  other 
function  or  office,  and  are  governed  by  the  same  rules,  and  must 
be  executed  with  the  same  formalities,  as  the  wills  themselves 
of  which  they  form  a  constituent  part.    They  are  prima  facie 

1  In  Ex  parte  Thompson,  4  Bradf .  154,  the  Surrogate  gives  a  concise  re- 
view of  the  history  of  unwritten  wills. 


36  THE   LAW   OF  DECEDENTS'  ESTATES.  [§  43 

dependent  upon  the  will;  the  destruction  or  mutilation  of  the 
will  is  an  implied  revocation  of  the  codicil. 

One  of  the  most  important  offices  which  a  codicil  may  per- 
form, as  part  of  a  pre-existing  will,  is  the  effect  ascribed  to  it 
of  confirming  or  republishing  such  will.  Being,  in  law,  part  of 
a  man's  will,  whether  so  described  in  the  codicil  or  not,  or 
whether  or  not  expressly  confirmatory  of  it,  it  furnishes  con- 
clusive evidence  of  the  testator's  considering  his  will  as  then 
existing,  whether  cancelled  by  obliteration  (if  it  continues  to 
be  legible)  or  otherwise.  And  for  the  same  reason  it  operates 
to  establish  a  will  which  would  be  void  for  want  of  comphance 
with  the  law  regulating  its  execution  and  attestation,  because 
the  codicil,  speaking  and  operating  from  the  time  of  its  execu- 
tion, brings  the  will  to  it  and  makes  it  a  will  from  the  date  of 
the  codicil.  The  codicil,  to  have  such  effect,  must  self-evidently 
refer  to  the  will  with  sufficient  certainty  to  identify  it;  but  it  is 
not  essential  that  the  two  papers  be  fastened  together,  or  that 
the  codicil  be  wTitten  on  the  same  paper  or  parclunent  with  the 
will.  But  if  there  are  several  wills  of  different  dates,  the  cir- 
cumstance of  annexation  is  powerful  to  show  that  it  was  in- 
tended as  a  codicil  to  the  will  to  which  it  is  annexed,  and  to  no 
other.  If  not  annexed  to  any  will,  the  codicil,  where  no  express 
date  is  mentioned,  refers  to  the  will  latest  in  date;  if  there  is, 
to  that  of  the  date  expressed. 

The  presumptions  pointed  out  yield,  of  course,  to  any  ex- 
press or  plainly  inferable  intention  of  the  testator.  A  codicil 
does  not  republish  any  part  of  a  will  which  is  inconsistent  with 
the  codicil,  but  necessarily  revokes  it;  nor  does  it  necessarily 
operate  as  if  the  will  had  originally  been  made  at  the  date  of  the 
codicil. 


§§  44,  45]  OF  THE   REVOCATION  OF  WILLS.  37 


CHAPTER  VI. 

OF  THE  REVOCATION   OF  WILLS. 

§  44.  Methods  of  Revocation.  —  The  power  to  revoke  a  will 
is  self-evidently  co-extensive  with  the  power  to  make  one.  It 
follows  from  the  ambulatory  quality  of  the  instrument  that  a 
later  will  supplants  a  former  one  precisely  to  the  extent  (and 
to  that  extent  only)  to  which  the  later  is  inconsistent  with  the 
former.    It  is  always  the  last  will  and  testament  which  controls. 

Revocation  may  also  be  effected  by  other  means  if  the  tes- 
tator does  not  wish  a  mere  alteration  or  change  in  the  shape  of 
his  testamentary  disposition,  but  an  entire  revocation,  leaving 
it  to  the  law  to  regulate  the  descent  of  his  property.  In  such 
case  the  revocation  is  accomplished  by  the  cancellation  or  de- 
struction of  his  will,  without  more. 

Revocation  also  follows  by  operation  of  law  from  any  sub- 
sequent act  of  the  testator  to  the  extent  that  such  act  is  incon- 
sistent with  the  devise  or  bequest. 

Sometimes  a  revocation  of  a  will  may  arise  also  from  changes 
in  the  family  relations  of  the  testator  occurring  after  execution 
of  the  will,  unless  by  some  act  of  the  testator  or  provision  in  the 
original  will  the  presumption  of  law  is  rebutted. 

§  45.  Revocation  by  Cancelling,  etc.  —  The  statutory  enact- 
ments in  most  States  follow  the  language,  or  re-enact  the  sub- 
stance, of  the  English  Statute  of  Frauds  in  respect  to  the 
revocation  of  wills  by  act  of  the  testator,  which  provides  that 
"no  devise  in  writing  of  any  lands,  tenements,  or  heredita- 
ments, nor  any  clause  thereof,  shall  be  revocable  otherwise 
than  by  some  other  will  or  codicil  in  writing,  or  other  writing 
declaring  the  same,  or  by  burning,  cancelling,  tearing,  or  oblit- 
erating the  same  by  the  testator  himself,  or  in  his  presence 
and  by  his  direction  or  consent,"  etc. 

To  constitute  cancellation  there  must  be  in  the  testator's 
mind  an  intention  to  cancel,  and  also  a  physical  act  adequate 


38  THE   LAW  OF  DECEDENTS'  ESTATES.  [§  45 

under  the  statute.  "All  the  destroying  in  the  world  without 
intention  will  not  revoke  the  will;  nor  all  the  intention  in  the 
world  without  destroying:  there  must  be  the  two."  ^ 

As  regards  the  physical  act,  the  obliteration,  cancellation, 
or  destruction  of  any  essential  formal  part  of  a  will,  without 
which  such  will  would  be  inoperative,  constitutes  a  revocation 
of  the  whole  will.  Such  act  is  inconsistent  with  any  other  in- 
tention than  that  of  destroying  the  will  in  its  entirety.  So  the 
tearing  of  a  seal  from  a  will,  although  a  seal  is  not  essential  to 
its  validity,  has  been  held  a  revocation,  because  the  testator, 
deeming  it  essential,  indicated  his  intention  of  destroying  the 
will  by  tearing  off  the  seal.^  Where  the  signature  is  cut  out 
of  a  will  it  is  revoked.  Pasting  it  into  its  former  place  will 
not  revive  the  will.  It  must  be  executed  afresh,  including 
attestation. 

But,  of  course,  wherever  the  statute  specifically  directs  the 
manner  of  cancellation,  it  must  be  strictly  pursued,  and  no 
inquiry  is  permitted  as  to  the  intent  of  a  testator  in  a  destruc- 
tive act  not  coming  up  to  statutory  requirements. 

Though  the  destruction  intended  by  the  testator  be  frus- 
trated by  fraud,  as  for  instance  when  the  testator  burned  an 
envelope  from  which  the  will  had  been  surreptitiously  removed, 
the  testator  never  doubting  that  he  had  burned  his  will,  revo- 
cation is  not  accomplished.^ 

If  the  physical  act  complies  with  statutory  requirements,  it 
must  still  appear  that  the  testator  intended  it.  If,  therefore, 
the  act  of  destruction  was  not  committed  animo  revocandi,  but 
by  accident,  mistake,  during  a  fit  of  insanity,  or  where  it  is  the 
eft'ect  of  handling  or  wear,  it  is  not  the  testator's  free  act,  and 
does  not  affect  the  validity  of  the  will  destroyed.  For  the  same 
reason  a  revocation  obtained  by  undue  influence  on  the  mind 
of  the  testator  is  inoperative,  and  leaves  the  will  in  full  force. 

Of  course  the  destruction  of  a  will  by  any  one  except  the 
testator,  acting  without  his  knowledge  or  approval,  cannot 
affect  the  will. 

1  Dr.  Deane  as  quoted  in  Throckmorton  v.  Holt,  180  U.  S.  552,  582. 
^  Avery  v.  Pixley,  4  Mass.  460,  462.    A  fortiori  where  a  seal  is  required: 
WTiite's  WiU,  25  N.  J.  Eq.  501. 

3  Graham  v.  Bureh,  47  Minn.  171,  174. 


§§  46,  47]  OF  THE  REVOCATION  OF  WILLS.  39 

If  the  will  is  executed  in  duplicate,  the  destruction  by  the 
testator  of  the  only  copy  in  his  possession  raises  a  presumption 
that  it  was  done  animo  revocandi.  But  where  the  testator  with 
both  copies  in  his  possession,  destroys  only  one,  lea\dng  the 
other  intact,  the  inference  that  the  act  was  done  animo  revo- 
candi is  very  weak,  if  indeed  it  exists  at  all.  If  done  with  intent 
to  revoke,  the  destruction  of  one  of  several  copies  accomplishes 
the  testator's  object. 

The  presumption  of  destruction  animo  revocandi  arises  also 
when  a  will  which  has  been  traced  to  the  testator's  possession 
cannot  be  found  after  his  death,  or  is  found  torn;  but  this  pre- 
sumption may  be  rebutted  by  evidence  showing  a  contrary  or 
different  purpose.  But  if  the  will  was  shown  to  be  out  of  the 
testator's  possession,  the  party  asserting  the  fact  of  revocation 
must  show  that  it  came  again  into  its  maker's  custody,  or  was 
actually  destroyed  by  his  direction. 

§  46.  Dependent  Relative  Revocation.  —  The  cancellation  of 
a  will,  or  of  part  of  a  will,  made  with  the  intention  to  execute  a 
new  will  (as  a  step  in  the  process  of  effecting  a  change  in  the 
testamentary  disposition  already  made),  will  not  be  deemed  a 
revocation,  if  the  purpose  of  the  testator  fails.  This  principle 
is  stated  by  Williams  to  have  resulted  in  "the  doctrine  of  de- 
pendent relative  revocation,  in  which  the  act  of  cancelling,  etc., 
being  done  with  reference  to  another  act,  meant  to  be  an  effec- 
tual disposition,  will  be  a  revocation  or  not,  according  as  the 
relative  act  be  efficacious  or  not."  ^ 

The  doctrine  can  be  applied  only  where  the  intent  to  change 
was  the  testator's  exclusive  intention;  where,  if  that  intention 
was  not  effectuated  for  any  reason,  he  would  have  preferred 
to  leave  the  will  as  it  stood.  The  abstract  theory  has  not  been 
repudiated,  but  modern  courts  are  not  inclined  to  infer  the 
mental  attitude  on  the  part  of  the  testator  necessary  to  con- 
stitute dependent  relative  revocation. 

§  47.  Partial  Revocation  by  Cancelling.  —  A  will  may  be  re- 
voked in  part  by  cancelling  or  obliterating  a  portion  thereof, 
leaving  the  unobliterated  portions  in  force.  Even  where  a 
portion  of  the  will  is  cut  out,  with  the  intention  of  annulling 
such  part  only,  the  remainder,  if  enough  is  left  to  constitute 
1  Williams  on  Executors  [148]. 


40  THE   LAW   OF   DECEDENTS'   ESTATES.  [§  48 

an  intelligible  disposition,  is  a  valid  will.  Tliis  rule  is  not 
recognized  in  some  jurisdictions. 

But  a  partial  change  in  the  will  can  only  be  effected  by  can- 
cellation; any  addition  or  substitution  is  a  new  will,  and  invalid 
without  republication. 

Any  change  in  a  will  by  any  one  but  the  testator  (without 
authority)  is  a  nullity;  the  will  stands  as  before  the  change, 
with  perhaps  one  exception;  which  is  that  when  a  beneficiary 
under  a  will  tampers  with  a  clause  conferring  a  benefit  on  him, 
he  loses  all  claim  under  that  clause  as  it  originally  stood.  He 
does  not  lose  the  benefit  of  other  provisions  of  the  will  in  his 
favor;  nor  can  the  punishment  visited  on  hun  affect  the  rights 
of  others  under  the  will  as  it  stood  before  the  change. 

When  a  will  is  offered  for  probate  with  alterations  on  its 
face,  the  acceptance  or  rejection  of  the  alterations  depends  on 
the  fact  whether  or  not  they  were  made  before  execution  of 
the  will.  Gradually  escaping  from  the  severe  doctrines  of  the 
common  law  in  regard  to  all  alterations  of  instruments,  modern 
courts  incline  to  the  view  of  indulging  in  no  presumption  on  the 
question  of  when  the  alteration  was  made,  imposing  upon  the 
propounder  of  the  instrument  the  burden  of  explaining  all  sus- 
picious alterations.  Where  an  interlineation  in  a  will  is  fair 
upon  its  face,  and  it  is  entirely  miexplained,  there  being  no 
circumstances  to  cast  suspicion  upon  it,  it  would  not  be  proper 
to  hold  that  the  alteration  was  made  after  execution;  and 
such  interlineations  as  supply  a  blank  in  the  sense  must  be 
distinguished  from  those  that  would  indicate  a  change  in 
intention. 

§  48.  Revocation  by  Subsequent  Will.  —  It  is  usual  to  insert 
in  wills  a  clause  revoking  all  prior  wills.  Even  without  such 
clause,  a  later  will  necessarily  revokes  so  much  of  the  former 
will  as  is  inconsistent  therewith,  but  only  so  much.  If  it 
disposes  of  the  whole  estate  it  necessarily  totally  revokes  prior 
wills.  If  it  makes  only  partial  dispositions,  not  inconsistent 
with  portions  of  prior  wills,  provisions  of  the  former  not  incon- 
sistent with  the  later  one  stand;  so  that  "any  number  of  in- 
struments, whatever  be  their  relative  date,  or  in  whatever  form 
they  may  be  (so  as  they  be  all  clearly  testamentary)  may  be 
admitted  to  probate  as  together  containing  the  last  will  of  the 


§  49]  OF  THE   REVOCATION  OF  WILLS.  41 

deceased."  ^     Subsequent  wills,  indeed,  perform  the  office  of 
codicils. 

The  subsequent  will  without  a  revoking  clause  may  under 
circumstances  revoke  inconsistent  provisions  of  a  prior  will, 
even  when  the  conflicting  provisions  of  the  later  will  must  fail. 
Thus,  where  a  testator,  having  devised  property  to  a  person, 
subsequently  devises  it  to  another  person  who  is  incapable  of 
taking,  the  devise  in  the  later  will  must  fail,  but  it  is  sufficient 
to  revoke  the  former  devise.  If  a  will  with  a  revoking  clause 
failed  in  all  its  affirmative  dispositions,  the  deceased  would  be 
intestate,  as  the  revoking  clause  alone  operated  to  revoke  the 
prior  will. 

The  revoking  will,  to  be  effective,  musl  be  executed  and  at- 
tested with  the  formalities  prescribed  by  the  statute  for  the 
testamentary  disposition  of  the  class  of  property  disposed  of 
in  the  former  will.  Thus,  where  the  statute  creates  a  difference 
in  the  execution  and  attestation  between  wills  of  realty  and  of 
personalty,  a  will  executed  with  necessary  formalities  for  one 
but  not  the  other  of  these  classes,  is  not  sufficient  to  revoke  a 
will  of  the  latter  class. 

It  is  held  that  the  revocation  of  a  will  may  be  proved  by  prov- 
ing the  execution  of  a  subsequent  will  by  the  testator,  which  is 
lost,  and  has  not  been,  therefore,  admitted  to  probate.  This 
rule  is  necessarily  confined  to  cases  where  the  subsequent  will 
either  expressly  revokes  the  former,  or  contains  an  inconsistent 
disposition  of  the  whole  estate,  as  by  appointment  of  an  executor 
and  residuary  legatee;  and  the  evidence  to  establish  its  execution, 
as  well  as  its  inconsistency  with  the  former  will,  should  be  clear 
and  satisfactory,  and,  particularly  if  by  parol,  it  must  be 
stringent  and  conclusive.  There  can  be  no  revocation  by  a 
later  will  of  which  the  contents  are  unknown;  the  words  "this 
is  my  last  will "  are  held  not  to  import  an  inconsistency  of  dis- 
position between  the  two  instruments. 

§  49.  Revival  of  a  Prior  Will  by  Revocation  of  a  Later  Will.  — 
A  revoking  will  is  ambulatory,  and  so  it  would  seem  must  be 
the  revocation  itself.  If  the  ambulatory  revocation  is  itself 
revoked,  it  leaves  the  prior  will  unrevoked.  What  then  is  the 
effect  of  the  cancellation  of  a  revoking  will  upon  the  prior  will? 
1  Williams  on  Executors  [162]. 


42  THE  LAW  OF  DECEDENTS'  ESTATES.  [§  50 

It  should  revive  the  prior  will  if  such  was  the  testator's  intent. 
There  has  been  much  division  between  courts  as  to  presumptions 
concerning  that  intent.  It  was  held  in  common-law  courts 
that  the  destruction  of  the  revoking  will  revived  the  prior  will, 
making  a  conclusive  presumption  as  to  intention,  against 
which  no  evidence  would  be  received,  while  the  ecclesiastical 
courts  inclined  to  a  different  doctrine,  holding  that  the  pre- 
sumption is  against  the  revival  of  the  prior  will,  and  throwing 
the  burden  of  pro\ang  the  intent  of  the  testator  upon  the  parties 
claiming  the  revival  of  the  prior  will.  A  third  view  was 
finally  adopted,  according  to  which  it  is  regarded  as  a  question 
of  intention,  to  be  collected  from  all  the  circumstances  of  the 
case,  unaided  and  unembarrassed  by  any  legal  presumption. 
American  cases  are  hopelessly  divided  on  the  question  where 
no  statute  controls. 

In  England  the  Wills  Act  (1  Vict.  c.  26)  provides  that  no 
will  or  codicil,  or  any  part  thereof,  which  shall  be  in  any  man- 
ner revoked,  shall  be  revived  otherwise  than  by  re-execution, 
or  by  a  codicil  executed  as  required  by  the  act,  and  showing 
an  intention  to  revive  the  same.  A  number  of  States  have 
adopted  statutes  based  on  the  English  one  just  cited.  Under 
some  of  these  statutes  WTitten  evidence  from  the  testator  of 
his  intention,  made  at  the  time  of  the  cancellation  of  the  re- 
vocatory will,  is  sufl5cient  to  reinstall  the  prior  will  without 
republication. 

§  50.  What  Property  passes  under  Will.  —  At  all  times  under 
English  law  the  will  applied  to  all  personalty  held  by  the  tes- 
tator at  his  death;  but  under  common  law  and  early  English 
statutes  the  devise  of  such  land  only  passed  under  the  will  as 
the  testator  owned  at  the  time  of  making  it  and  continued  to 
own  until  his  death ;  if  therefore  a  testator  aliened  the  devised 
land,  although  he  subsequently  acquired  a  new  freehold  inter- 
est therein,  yet  the  devise  was  void. 

But  the  law  has  been  changed  by  statute  in  this  respect  both 
in  England  and  in  nearly  all  of  the  United  States.  The  will 
operates  now  on  such  portion  of  the  estate  as  the  testator  may 
have  power  to  dispose  of  at  his  death,  including  of  course  all 
lands  acquired  since  the  will  was  made,  if  such  appears  to  be 
the  testator's  intention. 


§§  51-53]  OF  THE  REVOCATION  OF  WILLS.  43 

§  51.  Revocation  by  Inconsistent  Disposition  of  the  Testamen- 
tary Gift.  —  The  disposition  of  property,  which  is  covered  by 
the  terms  of  a  will,  by  the  testator  in  his  lifetime  is  a  revocation 
of  the  will  so  far  as  that  disposition  goes.  So  a  complete  sale 
of  realty  devised  clearly  revokes  the  will  in  that  particular. 

Questions  can  arise  only  when  the  disposition  is  inchoate  or 
partial. 

Where  the  estate  devised  is  contracted  to  be  conveyed,  and 
the  purchase  money  remains  unpaid,  either  wholly  or  in  part, 
the  unpaid  purchase  money  goes  to  the  personal  representative 
of  the  testator  and  not  to  the  devisee,  because,  under  the  doc- 
trine of  equitable  conversion,  the  purchaser  is  regarded  as  a 
trustee  of  the  purchase  money  for  the  vendor.  But  in  a  num- 
ber of  States  the  rule  is  changed  by  statutes,  which  substantially 
enact  that  a  contract  or  bond  for  the  conveyance  of  real  estate 
previously  devised  shall  not  be  deemed  a  revocation  of  such  de- 
vise unless  such  intention  shall  clearly  appear,  but  such  prop- 
erty shall  pass  to  the  devisee  subject  to  the  right  of  the  pur- 
chaser to  enforce  specific  performance  of  the  contract  of  sale 
to  the  same  extent  as  could  have  been  done  against  the  heirs, 
and  all  purchase  money  unpaid  at  the  time  of  the  testator's 
death  goes  to  the  devisee. 

So  too,  apart  from  statutes,  it  has  been  held  that  a  charge  or 
incumbrance  (usuaily  passing  legal  title)  on  devised  realty 
works  a  total  revocation;  but  in  many  States  it  is  enacted  that 
the  property  passes  to  the  devisee  subject  to  the  charge.  The 
subject  is  treated  more  fully  elsewhere. 

§  52.  Revocation  by  Marriage  of  Feme  Sole.  —  At  common 
law,  the  marriage  of  a  feme  sole  revokes  any  will  pre\4ously  made 
by  her,  although  she  survive  her  husband,  and  although  the 
husband  at  the  time  of  the  marriage  agreed  that  the  marriage 
should  not  revoke  the  will.  In  some  States  statutes  abolish  this 
rule,  and  in  many  others  the  same  result  has  been  reached 
without  express  statute,  on  the  ground  that  the  removal  of 
the  disabilities  of  married  women  has  ended  the  rule  by  wholly 
changing  the  conception  of  a  married  woman's  legal  status,  on 
which  the  rule  is  based. 

§  53.  Revocation  by  Marriage  of  Males  and  Birth  of  Issue.  — 
As  early  as  1682  the  rule  of  the  civil  law  that  where  a  man 


44  THE   L.\W  OF  DECEDENTS'   ESTATES.  [§  53 

made  his  will  and  afterwards  married  and  had  issue,  and  died 
leaving  wife  and  issue  unprovided  for,  this  should  be  consid- 
ered as  an  implied  revocation  of  his  will,  was  introduced  into 
the  courts  of  England,  and  subsequently  adopted  in  the  com- 
mon-law courts.  The  birth  of  a  posthumous  child  did  not  meet 
the  requirement  of  birth  of  issue.  The  will  was  not  avoided 
by  such  posthumous  birth.  But  birth  of  issue  during  the  mar- 
riage was  sufficient  for  revocation.  Though  the  testator  left 
no  issue  surviving  him,  the  rule  still  held  good. 

It  was  long  doubtful  whether  this  rule  raised  merely  a  prima 
facie  presumption  as  to  the  testator's  testamentary  intent, 
thus  allowing  evidence  of  the  testator's  intent,  to  have  his 
bachelor  will  stand  notwithstanding  the  marriage  and  birth 
of  issue;  or  whether  it  was  a  conclusive  presumption,  a  matter 
of  law,  precluding  all  evidence  as  to  the  testator's  real  intent. 
In  England  the  latter  view  was  held  in  the  case  of  Martin  v. 
Roe  (8  Ad.  &  El.  14,  54),  and  the  ruling  has  subsequently 
become  embodied  in  the  statute.  Under  this  view  a  settlement 
for  wife  and  children  made  at  or  after  marriage  is  not  sufficient 
to  prevent  the  revocation  of  the  will. 

The  rule  evidently  rests  on  the  idea  that  dispositions  made 
by  a  single  man  not  contemplating  matrimony  cannot  be  ex- 
pressive of  his  will  when  he  has  married  and  has  issue.  If 
then  the  will  of  a  single  man  makes  provision  for  his  marriage 
and  issue  thereof,  the  reason  for  the  rule  fails;  the  will  thus 
made  prior  to  marriage  is  not  revoked  by  marriage  and  birth 
of  issue. 

The  American  statutes  vary  greatly  on  this  point.  In  general 
the  principle  stated,  with  statutory  modifications  which  it  will 
not  be  attempted  here  to  detail,  is  recognized.  One  statutory 
change  is  however  worthy  of  notice.  A  number  of  States  leave 
the  will  in  force  when  the  issue  of  the  marriage  does  not  sur- 
vive the  testator.  The  technical  reasoning  for  the  rule  is  that 
when  the  will  is  once  cancelled  by  the  birth  of  issue  no  subse- 
quent event,  short  of  republication,  can  revave  it.  As  for  the 
widow,  it  is  recognized  that  the  law  adequately  pro\ddes  for  her 
against  any  will.  The  statutes  therefore  which  proceed  on 
the  basis  that  no  wrong  has  been  done,  and  that  there  is  there- 
fore no  reason  for  cancellation  of  a  bachelor's  will,  where  no 


§§  54,  55]  OF  THE   REVOCATION   OF   WILLS.  45 

issue  of  a  subsequent  marriage  survives,  seem  to  cover  the 
situation  practically. 

§  54.  Consequence  of  Failure  to  provide  for  Issue.  —  By  de- 
cided weight  of  authority  it  seems  that,  apart  from  statutes, 
the  will  made  by  a  man  after  marriage  is  not  revoked  either 
wholly  or  yro  tanU)  by  subsequent  birth  of  issue.  But  it  is 
believed  that  none  of  the  States  have  failed  to  make  statutory 
provision  on  this  point. 

Few,  if  any.  States  (except  Louisiana)  deny  the  parent's 
right  to  disinherit  children  at  his  pleasure.  The  effect  of  failure 
to  make  provision  for  children  in  a  will  rests  on  a  technical  pre- 
sumption that  such  failure  is  some  oversight  or  accident.  Not 
only  has  a  parent  a  right  to  disinherit  a  child  in  express  terms, 
but  whenever  he  shows  that  intention  clearly  in  his  will,  though 
the  child  or  children,  living  or  to  be  born,  are  not  expressly 
named,  the  will  stands,  and  the  statutes  next  mentioned  do  not 
apply. 

Most  States  provide  that  when  issue  is  born  to  a  testator 
subsequent  to  the  making  of  his  will,  the  will  shall  be  revoked 
pro  tanto;  that  is,  the  pretermitted  child  takes  as  if  the  deceased 
had  died  intestate,  and  after  the  claims  of  such  child  are  satis- 
fied, the  balance  of  the  estate  is  divided  in  accordance  with 
the  provisions  of  the  will.  In  many  States  no  distinction  is 
drawn  between  children  born  after  the  making  of  the  will, 
and  such  as  have  been  pretermitted,  though  in  existence  when 
the  will  was  made;  nor  between  children  and  the  issue  of  de- 
ceased children.  Posthumous  children  are  usually  held  to  be 
protected  by  the  statutes. 

§  55.  Republication  of  Wills.  —  A  will  revoked  by  the  legally 
expressed  intention  of  the  testator  or  by  implication,  as  above 
set  forth,  may  be  restored.  But  the  will  so  republished  is  a 
new  one;  and  the  validity  of  the  republication  involves  all 
elements  requisite  for  making  of  an  original  will.  As  to  form 
all  requisites  for  signature  and  attestation  of  the  original  will 
must  be  complied  with;  and  if  the  party  attempting  to  republish 
did  not  at  the  time  have  a  disposing  mind,  or  if  the  republica- 
tion was  the  result  of  undue  influence,  these  facts  will  render 
the  republication  as  ineffective  as  would  the  same  objections 
applied  to  the  probate  of  an  original  will. 


46  TUE  L.\W  OF  DECEDENTS'   ESTATES.  [§  55 

It  has  been  said  before  that  a  valid  codicil  affirming  a  prior 
testamentar}^  disposition,  which  was  defective  for  formal 
reasons  (e.  g.,  inadequate  witnesses),  or  indeed  inherent  ones 
{e.  g.,  undue  influence),  makes  that  prior  testamentary  disposi- 
tion an  effective  will.  Logically  it  republishes  the  prior  docu- 
ment. It  is  but  an  application  of  this  doctrine  to  a  special  state 
of  facts  to  say  that  an  inherently  and  formally  valid  codicil 
republishes  a  will  to  which  it  refers  and  validates  it,  even  though 
that  Avill  has  been  revoked,  as  for  instance  by  marriage  and 
birth  of  issue. 


56]  DONATIONES   MORTIS   CAUSA.  47 


BOOK   TWO. 

OF  GIFTS  EXECUTED   IN  ANTICIPATION  OF 
IMMEDIATE   DEATH. 


CHAPTER  VII. 

DQNATIONES  MORTIS  CAUSA. 

§  56.  Definition  of  the  Term.  —  A  donatio  mortis  causa  has 
been  defined  as  "  a  gift  of  personal  property  made  by  a  person 
in  peril  of  death  and  in  expectation  of  an  early  demise,  consum- 
mated by  a  manual  delivery  of  the  subject  of  the  gift  or  of 
the  means  of  obtaining  possession  of  the  same  by  the  donor, 
or  by  another  person  in  his  presence  and  by  his  direction,  to 
the  donee,  or  to  a  third  person  for  the  donee,  and  acceptance 
on  the  part  of  the  donee,  and  defeasible  by  reclamation,  the 
contingency  of  survivorship,  or  delivery  from  the  peril."  ^  It 
is  thus  neither  a  testamentary  disposition,  since  it  passes  title 
before  death,  nor  a  gift  inter  vivos,  since  it  is  revocable. 

The  legal  recognition  of  this  form  of  disposing  of  property, 
as  the  retention  of  the  Latin  name  indicates,  has  come  down 
to  us  from  the  civil  law.  It  has  never  been  favored  in  law.  It 
was  carefully  guarded  under  the  Roman  law,  which  invalidated 
every  such  gift  unless  proved  by  five  witnesses  present  at  the 
time,  with  other 'stringent  requirements.  Such  strictness  of 
proof  is  not  required  by  the  common  law;  but  courts  regret 
that  this  species  of  gift  has  not  been  swept  away  by  the  Statute 
of  Frauds,  and  are  very  cautious  to  require  positive,  clear,  and 
satisfactory  evidence  in  establishing  it,  to  guard  against  fraudu- 
lent pretenses  in  claiming  the  property  of  deceased  persons. 
But  when  found  to  be  made  in  good  faith,  they  must  be  upheld. 

The  essential  elements  of  such  a  gift,  as  stated  in  the  fore- 

1  Thomas  Frazer  Reddy,  21  Am.  L.  Rev.  734. 


4S  THE   LAW   OF  DECEDENTS'  ESTATES.  [§§  57,  5S 

going  definition,  next  require  consideration.  These  are  appre- 
hension of  death  and  delivery  of  the  thing  given. 

§  57.  Apprehension  of  Death.  —  The  first  requisite  to  a 
valid  donatio  causa  mortis  is,  as  indicated  by  the  name,  that  it 
be  made  under  apprehension  of  the  donor's  death  from  an 
existing  illness  or  peril.  If  a  gift  is  made  with  the  view  that  it 
take  effect  upon  the  donor's  death,  but  while  in  ordinary  health 
and  not  in  immediate  apprehension  of  death,  it  may  be  a  valid 
gift  inter  vivos,  but  cannot  be  mortis  causa.  But  it  is  not  neces- 
sary that  there  should  be  an  expression  of  the  donor's  appre- 
hension of  death;  if  the  gift  is  made  during  his  last  illness,  or 
while  in  danger  of  death  from  any  other  cause,  it  will  be  pre- 
sumed to  have  been  made  in  apprehension  of  death.  Nor  has 
the  rule  applicable  to  nuncupative  wills,  according  to  which 
the  legacy  is  valid  only  when  made  under  circumstances  ren- 
dering it  impossible  to  make  a  wTitten  will,  any  application  to 
gifts  mortis  causa. 

The  validity  of  the  gift  is  not  affected  by  the  time  interven- 
ing betw^een  the  delivery  and  the  happening  of  the  donor's 
death;  the  only  condition  is  that  there  be  no  recovery  from  the 
illness,  or  escape  from  the  peril  then  impending,  which  induced 
the  gift. 

Since  the  gift  mortis  causa  is  conditioned  to  take  effect  upon 
the  donor's  death  by  the  existing  disorder  or  peril,  it  is  obvious 
that  it  is  revocable,  before  the  happening  of  that  event,  at 
his  pleasure;  and  if  it  be  inferable  from  the  circumstances  that 
an  irrevocable  gift  was  intended,  it  can  be  sustained  only  as  a 
gift  inter  vivos. 

§  58.  Delivery  of  the  Thing  Given.  —  There  can  be  no  valid 
gift  causa  mortis  without  actual  manual  delivery  of  the  thing 
given,  or  some  act  equivalent  thereto. 

Real  estate  cannot  be  the  subject  of  such  a  gift,  one  sufficient 
reason  being  that  it  is  incapable  of  manual  delivery. 

With  regard  to  goods  and  chattels,  and  tangible  property 
generally,  to  which  things  the  application  of  this  principle  was 
originally  limited,  it  is  held  that  a  literal  delivery  of  the  gift 
itself  is  exceptionally  excused  where  it  is  impracticable.  In 
such  case  the  delivery  of  the  tangible  thing  which  gives  access 
to  the  gift  has  been  held  to  satisfy  the  law.    It  is  a  constructive 


§  59]  DONATIONES  MORTIS   CAUSA.  49 

delivery.  Thus  the  delivery  of  the  key  of  a  room  containing 
furniture  has  repeatedly  been  held  such  a  delivery  of  the  fur- 
niture as  will  support  a  donation  of  it  mortis  causa. 

The  test  for  allowing  constructive  instead  of  manual  deliv- 
ery would  seem  on  principle  to  be  the  same  in  cases  of  gifts 
mortis  causa  as  in  cases  of  gifts  inter  vivos.  There  is  no  such 
thing  as  symbolical  delivery,  in  spite  of  an  early  case  to  the 
contrary.  The  delivery  of  a  part  in  the  name  of  the  whole, 
as  a  ring  from  the  stock  of  a  jeweler,  cannot  stand,  no  matter 
what  the  accompanying  circumstances. 

Formerly  it  was  held  that  choses  in  action  were  as  incapable 
of  delivery  as  real  estate.  The  ancient  rule  concerning  choses 
in  action  required  an  assignment  in  writing  or  something  equiv- 
alent thereto  in  the  form  of  writing,  and  an  actual  execution 
of  the  transfer  to  give  validity  to  the  gift.  But  since  the  equi- 
table doctrine  has  prevailed  that  choses  in  action  are  assignable 
by  the  delivery  of  the  evidence  of  the  grantor's  right,  a  gift 
causa  mortis  becomes  valid  by  such  delivery,  and  may  be  en- 
forced like  any  other  assignment  in  equity.  Hence  promissory 
notes  of  third  parties  may  be  given  mortis  causa,  even  without 
the  donor's  endorsement.  So  also  checks  or  drafts  of  third 
persons,  certificates  of  deposit  payable  to  the  bearer,  or  pay- 
able to  order  and  endorsed  by  the  payee,  or  without  endorse- 
ment, bonds,  notes  secured  by  mortgage,  life  insurance  policies, 
and  certificates  of  stock.'  In  all  these  cases  the  paper  in  ques- 
tion may  perhaps  be  viewed  as  the  thing  itself  which  is  given ; 
but  if  that  view  is  not  sound,  it  is  clearly  true  that  such  paper 
puts  the  donee  in  control  as  fully  as  the  transfer  of  the  key  to 
a  room  transfers  its  contents.  Even  the  delivery  of  the  donor's 
book  of  current  deposits  in  bank  is  generally  held,  though  with 
some  dissent,  to  be  sufficient  to  give  the  donee  title  to  the  fund 
in  bank. 

Clearly  the  donor's  own  note  payable  to  the  donee  cannot 
be  the  subject  matter  of  a  gift  caiisa  mortis.  Back  of  the  form, 
it  is  essentially  only  a  promise  to  give. 

§  59.  Parting  with  Control,  —  The  donor  must  not  only  make 
physical  delivery,  but  he  must  part  with  all  control.  The  gift 
is  indeed  capable  of  revocation  at  the  donor's  pleasure,  but  until 
^  Cases  are  cited  in  Woerner  on  Administration,  §  59. 


50  THE   LAW  OF  DECEDENTS'  ESTATES.  [§§  60,  61 

it  is  revoked  in  some  way  the  gift,  and  the  donee's  control, 
must  be  absolute.  This  is  well  illustrated  by  the  case  of  Basket 
V.  Hassell,  107  U.  S.  602,  1.  c.  614.  A  certificate  of  deposit 
payable  to  the  donor  was  endorsed  by  him:  "Pay  to  Martin 
Basket  ...  no  one  else;  then  not  till  my  death.  ...  I  may 
live  tlirough  this  spell.  Then  I  will  attend  to  it  myself." 
There  was  physical  delivery  and  no  revocation;  the  donor  died. 
Yet  the  gift  was  invalid,  since  Basket  had  not  full  control. 
Under  that  endorsement  he  could  not  have  collected  the  deposit 
when  he  received  it. 

§  60.  Delivery  to  Person  other  than  Beneficial  Donee.  — 
When  the  donor  delivers  the  gift  to  his  agent  with  directions 
to  turn  it  over  to  the  donee,  the  gift  is  clearly  not  complete 
until  the  donor's  agent  has  actually  made  delivery  to  the  donee, 
and  must  fail  for  want  of  such  delivery.  But  when  the  recipient 
of  the  gift  receives  it  as  agent  of  the  donee  and  not  of  the  donor, 
the  interest  passes  immediately  to  the  donee  for  whom  from  the 
moment  of  such  delivery  the  recipient  is  mere  bailee.  In  such 
case  the  gift  is  complete  on  delivery  to  the  recipient,  accepting 
on  behalf  of  the  ultimate  donee.  The  case  is  clear  as  a  matter 
of  law,  though  the  state  of  facts  may  often  be  involved  in 
doubt. 

A  gift  causa  mortis  may  also  be  made  to  a  trustee  upon  trusts 
declared  by  the  donor.  The  delivery  to  the  trustee  perfects 
the  formal  gift.  The  trust  may  be  invalid,  owing  to  vagueness, 
to  contravention  of  some  public  policy,  or  to  any  other  cause. 
But  on  such  questions  the  law  is  the  same  in  gifts  causa  mortis 
as  it  is  in  testamentary  trusts,  in  which  latter  connection  it 
will  be  discussed. 

§  61.  Revocation  by  the  Living  Donor.  —  When  all  requisites 
for  a  gift  causa  mortis  have  been  complied  with,  the  donor  while 
living  still  has  the  right  to  revoke  it,  with  or  without  reason. 
But  the  revocation  does  not  result  from  the  mere  will  of  the 
donor,  however  clearly  declared.  There  must  be  a  demand  for 
redelivery  made  on  the  donee  in  some  form.  On  the  other  hand 
it  is  not  necessary  that  the  donor  should  recover  actual  posses- 
sion of  the  gift.  The  gift  is  cancelled  though  the  donee  refuses 
to  surrender  the  article  given  him. 

But  the  power  of  revocation  must  be  exercised  while  the  donor 


§§  62-64]  DONATIONES  MORTIS  CAUSA.  51 

is  living.  It  cannot  be  revoked  by  last  will  and  testament, 
although  there  be  a  different  testamentary  disposition  of  the 
specific  thing  given  causa  mortis,  because  the  will  speaks  as 
of  the  moment  of  the  testator's  death,  which  has  vested  the 
previous  gift  irrevocably  in  the  donee. 

§  62.  Revocation  by  Law.  —  As  before  stated,  a  gift  causa 
mortis  can  only  be  made  in  apprehension  of  death.  The  re- 
covery of  the  donor  from  the  illness,  or  the  delivery  from  the 
peril  which  induced  the  gift  works  its  revocation  of  itself  with- 
out any  act  on  the  part  of  the  donor;  and  this  too,  although  the 
recovery  be  temporary,  and  death  finally  ensue  from  the  same 
cause. 

The  death  of  the  donee  occurring  before  that  of  the  donor 
likewise  operates  a  revocation,  similar  in  effect  to  the  lapsing 
of  a  bequest  by  the  death  of  the  legatee  before  that  of  the 
testator. 

It  has  been  held  that  the  donatio  mortis  causa  partakes  of  the 
nature  of  legacies  to  the  extent  of  being  revocable  by  the  sub- 
sequent birth  of  issue  to  the  donor,  where  such  would  be  its 
effect  on  a  prior  will. 

§  63.  Liability  of  the  Gift  to  Donor's  Creditors.  —  Like  gifts 
inter  vivos  and  legacies,  gifts  mortis  causa  are  subject  to  de- 
feasance in  favor  of  the  donor's  creditors,  because,  as  against 
them,  one  cannot  give  away  his  property.  Donees  causa  mortis 
take  their  title  to  the  property  subject  to  the  contingent  right 
of  the  administrator  to  reclaim  it,  and  are  bound  to  have  it 
forthcoming  when  required  for  the  payment  of  debts  to  the 
extent  of  such  debts. 

§  64.  Validity  of  the  Gift  as  against  the  Donor's  Family.  — 
To  what  extent  such  gifts  will  be  permitted  to  interfere  with 
the  rights  of  widows  and  infant  children  of  the  donor,  does  not 
appear  very  clearly.  Chief  Justice  Shaw  expressly  held  that 
the  right  of  the  widow  is  to  the  property  of  which  the  husband 
died  seized  or  possessed;  and  because  gifts  causa  mortis  have 
their  full  effect  in  the  lifetime  of  the  donor,  they  do  not  impair 
the  rights  of  the  widow.^  On  which  Judge  Redfield  remarks: 
"  It  seems  to  us  very  questionable  whether  a  man  of  substance 
can  be  allowed  to  dispose  of  his  whole  estate,  and  leave  his  widow 
1  Chase  v.  Redding,  13  Gray,  418. 


52  THE   L.\W   OF  DECEDENTS'   ESTATES.  [§  64 

a  beggar,  by  the  means  of  this  species  of  gift,  which  is  clearly 
of  a  testamentary  character,  where  the  statute  expressly  pro- 
vides that  the  widow  may  waive  the  provisions  of  the  will 
and  come  in  for  her  full  share  of  the  personal  estate,  under  the 
statute,  by  way  of  distribution."  ^  In  some  States  the  widow's 
rights  have  been  held  to  prevail  over  such  a  gift;  and  a  convey- 
ance by  the  husband,  whether  mortis  causa  or  inter  vivos,  will 
be  set  aside  as  in  fraud  of  the  wife  and  family  when  made  in 
expectation  of  death  with  a  view  to  defeat  the  widow's  right 
under  the  statute  to  a  share  in  his  estate.^ 

1  3  Redf.  on  Wills,  323,  pi.  3,  note  7. 

2  Straat  v.  O'Neil,  84  Mo.  68,  71.   See  Woemer  on  Administration,  §  63. 


65]  DESCENT   AND    DISTRIBUTION    OF    PROPERTY.  53 


PART  II. 
OP  THE  DEVOLUTION  BY  OPERATION  OF  LAW. 

CHAPTER  VIII. 

DESCENT  AND   DISTRIBUTION  OF  PROPERTY   OF  INTESTATES. 

§  65.  Principles  governing  Distribution.  —  In  default  of  the 
testamentary  disposition  of  the  property  of  a  deceased  person, 
the  law  disposes  of  the  same  precisely  as  the  deceased  himself 
would  do  if  acting  rationally,  and  without  motive  or  influence 
of  an  extraneous  nature.  The  family  of  a  person  have  claims 
upon  him  while  living  which  are  recognized,  and  to  a  great 
extent  enforced,  by  the  law :  a  man  may  be  compelled  to  provide 
for  his  wife  and  children  the  necessaries  for  their  support  and 
comfort,  and  for  the  proper  education  of  his  children.  But  he 
may  freely  alien  any  of  his  property  during  his  lifetime,  even, 
as  has  been  shown,  on  the  very  point  of  death,  or  dispose  of  the 
same  by  last  will,  subject  only  to  such  restrictions  as  the  law 
imposes  for  the  protection  of  the  wife  and  surviving  minor 
children.  The  statutory  law  of  England  and  America  (except 
in  the  State  of  Louisiana)  allows  gifts  and  devises  or  bequests,  in 
derogation  of  the  interest  of  his  own  family,  to  a  greater  extent, 
perhaps,  than  any  other  of  the  civilized  nations;  nevertheless, 
its  presumptions  and  intendments,  whenever  occasion  exists 
for  the  application  of  such,  are  in  favor  of  the  family.  Thus  it 
is  the  family  which  furnishes  the  basis  and  content  of  the  law 
regulating  the  devolution  of  the  property  of  intestates. 

This  subject  is  so  thoroughly  treated  in  the  statutes  of  every 
State  of  the  Union  that  there  is  neither  room  nor  occasion  for 
an  extensive  general  discussion  of  its  principles  apart  from  a 
reference  to  their  provisions.  But  it  may  be  necessary  to  bear 
in  mind  that  in  most  of  the  States  the  statutes  of  descent  and 
distribution  are  subject,  and  to  be  construed  in  connection  with, 


54  THE  L.\W   OF  DECEDENTS'  ESTATES.  [§§  66,  67 

the  law  concerning  dower,  curtesy,  partnership,  homestead, 
and  exemption,  and  particularly  to  the  peculiarly  American 
pro\isions  in  favor  of  the  widow  and  minor  children  for  their 
immediate  support,  which  will  be  noticed  hereafter. 

§  66.  Sources  of  American  Law  of  Descent  and  Distribution.  — 
The  term  "descent "  is  applied  to  devolution  of  real  estate  when 
the  owmer  has  died  intestate,  while  distribution  is  applied  to 
the  division  of  his  personalty.  Descent  of  real  estate  is  regulated 
in  England  by  the  common  law.  Its  cornerstone  is  primogeni- 
ture; and  carefull}'  formulated  rules,  mainly  of  feudal  origin, 
pro\dde  for  all  contingencies.  Distribution  of  personalty  in 
England  is  governed  by  the  Statute  of  Distribution  (22  and  23 
Charles  II).  In  the  United  States  primogeniture  exists  no- 
where; and  the  whole  common  law  of  descent  is  superseded, 
save  that  it  has  had  influence  in  settling  our  law  on  a  few  points 
of  relatively  small  importance.  With  very  few  exceptions  realty 
and  personalty  of  intestates  ultimately  go  in  the  United  States 
to  the  same  persons  under  rules  common  to  both  classes  of 
property.  In  every  State  there  are  statutes  under  which  the 
division  is  made.  These  statutes  are  in  the  main  modelled 
after  and  mostly  approximate  in  their  general  results  the 
English  Statute  of  Distribution,  which  in  its  turn  is  mainly 
borrowed  from  the  law  derived  from  Rome,  so  that  the  construc- 
tion and  the  practice  under  it  have  been  governed  to  a  great 
extent  by  the  principles  of  the  Roman  law  and  its  derivatives. 
These  State  statutes  are  exceedingly  diverse  in  their  details. 
All  that  is  here  attempted  is  the  discussion  of  the  general  plan, 
with  occasional  reference  to  a  sharp  contrast  on  some  important 
point. 

§  67.  The  Degrees  of  Relationship.  —  The  central  thought  of 
these  Statutes  of  Descent  and  Distribution  is  to  give  the  prop- 
erty of  the  intestate  to  his  nearest  relatives.  The  method  of 
determining  degrees  of  kinship  must  therefore  be  considered. 
First,  affinity  and  consanguinity  are  distinguished.  Consan- 
guinity requires  that  the  persons  concerned  have  a  common 
ancestor.  Where  there  is  no  common  stock,  the  relations  in  the 
family  rest  on  affinity.  The  law  of  distribution  ignores  affinity 
(with  sole  exception  of  the  husband  or  wife),  and  deals  with 
consanguinity  only.    Consanguinity  may  be  lineal  or  collateral. 


§§  68,  69]  PROPERTY   OF  INTESTATES.  55 

Lineal  consanguinity  subsists  between  persons  one  of  whom  is 
descended  in  a  direct  line  from  the  other.  Such  is  the  relation 
of  the  intestate  to  his  parents,  grandparents,  and  so  on,  in  the 
ascending  line,  and  to  his  children,  grandchildren,  and  so  on, 
in  the  descending  line.  There  can  be  here  only  one  way  of  fixing 
the  degree  of  relationship.  The  intestate  is  related  in  the  first 
degree  to  children  and  parents,  in  the  second  to  grandchildren 
and  grandparents,  and  so  on.  Collateral  kindred  are  descended 
from  the  same  stock  or  ancestor,  but  not  from  each  other.  The 
common  ancestor  is  the  stirps  or  root  from  which  these  rela- 
tions are  branched  out.  Thus  the  intestate  is  collaterally 
related  to  his  brothers  and  their  descendants  (the  intestate's 
nieces,  nephews,  etc.),  with  the  father  as  common  ancestor; 
to  his  uncles  and  their  descendants  (the  intestate's  cousins, 
etc.),  with  the  grandfather  as  a  common  ancestor  and  so  on. 

§  68.  Collateral  Relationship  under  Canon  and  Civil  Law.  — 
The  method  of  computing  the  degrees  of  collateral  kindred 
is  the  same  at  the  common  as  at  the  canon  (ecclesiastical)  law, 
from  which  it  has  been  adopted,  and  begins  with  the  common 
ancestor  reckoning  downward.  In  whatever  degree  the  claim- 
ant is  distant  from  the  first  ancestor  common  to  him  and 
the  intestate,  that  is  the  degree  in  which  they  are  related. 
But  if  there  are  more  degrees  between  the  intestate  and  the 
ancestor  than  between  the  ancestor  and  the  claimant,  then  the 
degrees  are  reckoned  between  the  intestate  and  the  ancestor;  or, 
in  other  words,  in  counting  upward  from  the  intestate  to  the 
ancestor,  and  do^mward  from  the  ancestor  to  the  claimant,  the 
longer  of  these  two  lines  indicates  the  degree  of  consanguinity. 

The  civilians  count  upward  from  the  intestate  to  the  common 
ancestor,  and  from  him  downward  to  the  heir,  reckoning  one 
degree  for  each  step  taken,  adding  the  degrees  in  the  ascending 
line  to  those  in  the  descending  line,  and  the  sum  indicates  the 
degree  of  consanguinity  between  the  intestate  and  the  person 
whose  heirship  is  to  be  established. 

These  systems  of  course  produce  different  results.  The  in- 
testate is  related  to  his  uncle  by  the  canon  and  common  law, 
taking  the  longer  line,  in  the  second  degree;  by  the  ci\dl  law, 
taking  the  sum  of  the  lines,  in  the  third  degree. 

§  69.    Representation.  —  Should  the  intestate  leave  children 


56  THE   L.\W   OF  DECEDENTS'   ESTATES.  [§  69 

together  with  descendants  of  a  predeceased  child,  it  seems 
obviously  right  that  the  grandchildren  of  the  intestate  should 
take  the  share  which  would  have  gone  to  their  parent,  had  he 
survived.  They  are  said  to  take  by  representation.  In  its 
broadest  terms  the  doctrine  of  representation  is  that  whenever 
one  of  a  class  entitled  to  distribution  has  died  before  the  intes- 
tate, leaving  issue  which  survives  the  intestate,  such  issue  shall 
take  the  share  which  the  predeceased  ancestor  would  have 
taken  if  living  at  the  death  of  the  intestate.  But  the  doctrine 
is  rarely  recognized  in  this  broad  form.  On  the  one  hand 
there  are  limitations  as  to  the  deceased  relatives  who  can  thus 
be  represented,  and  on  the  other,  when  representation  is  al- 
lowed, as  to  the  remoteness  of  the  claimant  in  descent  from  the 
ancestor  he  would  represent.  Can  the  children  of  a  predeceased 
cousin  claim?    If  so,  can  his  grandchildren? 

In  case  of  lineal  consanguinity,  in  the  descending  line,  there 
is  no  limitation  on  the  rule;  but  under  the  English  Statute,  as 
construed  by  the  courts,  in  case  the  claimants  are  collaterally 
related  to  the  intestate,  representation  applies  to  children  of 
deceased  brothers  and  sisters  of  the  intestate;  not  to  grand- 
children of  brothers  and  sisters,  and  not  to  children  of  remoter 
relatives.  The  English  rule  is  adopted  in  many  States.  It  is 
variously  modified  in  others,  in  some,  as  in  Missouri,  going  so 
far  as  to  apply  the  rule  in  its  unrestricted  form  as  above  given. 

It  remains  to  notice  another  consequence  of  the  rule  allowing 
the  children  of  deceased  parents  to  take  the  parent's  share  by 
representation,  applicable  equally  to  lineal  and  collateral  heirs 
taking  by  representation.  If  the  heirs  all  stand  in  the  same 
degree  of  consanguinity  to  the  intestate,  and  take  in  their  own 
right  (none  of  them  by  representation),  they  take  equal  shares 
{yer  capita) ;  hence  the  three  children  of  a  deceased  sister  of  the 
intestate  and  the  only  child  of  a  deceased  brother  take  each 
one-fourth  part  of  the  estate,  in  disregard  of  the  number  of 
those  who  may  spring  from  a  common  parent,  because  in  estab- 
lishing the  degree  of  kinship  they  do  not  represent  such  parent. 
But  if  one  or  some  of  the  heirs  claim  in  their  own  right,  —  that 
is,  by  virtue  of  their  degree  of  consanguinity,  —  and  the  claim 
of  others  rests  upon  the  representation  of  a  deceased  parent  or 
ancestor,  who,  if  living,  would  be  in  that  degree,  then  such  repre- 


§  70]  PROPERTY  OF  INTESTATES.  57 

sentatives  take  per  stirpes,  —  that  is,  collectively  as  much  as 
the  deceased  parent  or  ancestor  would  have  taken,  —  while  the 
former  take  per  capita.  The  whole  estate  in  such  case  is  to  be 
divided  by  the  sum  of  the  number  of  those  claiming  in  their 
own  right  plus  the  number  of  stirpes  represented  by  descendants, 
the  descendants  collectively  of  each  stirpes  taking  his  share. 
So  that  the  tliirty-two  nephews  and  nieces  of  an  intestate,  and 
the  twenty-five  grand-nephews  and  grand-nieces  and  unknown 
heirs  of  a  deceased  niece,  take,  the  former  per  capita,  the  latter 
per  stirpes} 

§  70.  Statutory  Modification  of  System  of  Distribution.  — 
The  canon  (and  common)  law  as  to  fixing  the  degree  of  kin- 
ship is  at  the  base  of  most  of  our  American  Statutes,  but  within 
the  limits  of  the  immediate  family,  the  theory  has  yielded  to 
ethical  considerations. 

Thus  parents  and  children,  according  to  the  scheme,  are 
both  related  to  the  intestate  in  the  first  degree;  but  all  States 
leave  the  property  to  the  descendants  of  the  intestate  to  the 
exclusion  of  everybody  else. 

Again,  where  the  intestate  leaves  no  descendants,  the  relative 
rights  of  brothers  and  sisters  on  the  one  hand  as  against  parents 
on  the  other,  present  an  ethical  problem  which  would  probably 
receive  its  answer  in  accordance  with  the  varjang  circumstances 
of  each  individual  case.  But  of  course  there  must  be  an  un- 
bending rule.  Every  State  meets  the  situation,  but  the  varying 
statutes  cannot  here  be  collated.  As  an  example,  Missouri 
makes  division  in  equal  shares  between  father,  mother,  brothers, 
and  sisters. 

The  scheme  of  relationship  deals  only  with  consanguinity. 
It  has  no  place  for  the  sur\aving  husband  or  wife,  related  to  the 
deceased,  if  indeed  at  all,  only  by  affinity.  It  is  true  the  surviv- 
ing husband  or  wife  has  rights,  at  common  law  and  under 
statutes,  in  the  property  of  the  deceased  spouse,  which  have 
priority  over  the  distribution  of  the  estate.  But  even  with  this 
provision  in  view,  it  would  hardly  seem  just  to  give  the  bulk  of 
the  property  of  the  intestate  to  distant  relatives,  of  whom  per- 
haps he  had  no  knowledge,  to  the  exclusion  of  the  husband  or 
wife.  Accordingly  all  States  introduce  husband  and  wife  some- 
^  Copenhaver  v.  Copenhaver,  9  Mo.  App.  200. 


58  THE   L.\W   OF  DECEDENTS'   ESTATES.  [§§  71,  72 

where  into  the  schedule  of  distributees.  It  may  be  higher  or 
lower  in  the  scale;  the  husband  may  appear  at  a  different  point 
from  the  wife.  The  statutes  must  be  consulted.  As  an  example, 
Missouri  places  the  surviving  husband  or  wife  after  the  intes- 
tate's father,  mother,  brothers  and  sisters,  or  their  descendants. 

§  71.  Heirs  of  the  Half  Blood. — Brothers  and  sisters  having  the 
same  father  and  mother  are  related  to  each  other  by  the  whole 
blood;  if  they  have  the  same  father  but  a  different  mother,  or 
the  same  mother  but  a  different  father,  they  are  related  to  each 
other  by  the  half  blood.  This  difference  in  the  consanguinity 
of  collateral  kindred  has  given  rise  to  some  divergence  in  the  laws 
of  different  countries  regulating  the  devolution  of  property.. 
Under  the  artificial  system  of  the  common  law,  collateral  kin- 
dred of  the  half  blood  were  entirely  excluded  from  the  inher- 
itance of  land,  while  in  the  distribution  of  the  personalty  no 
distinction  is  recognized  between  brothers  and  sisters  of  the 
whole  blood  and  those  of  the  half  blood;  "for  they  [the  half 
blood]  are  of  the  kindred  of  the  intestate,  and  only  excluded 
from  inheritances  of  land  upon  feudal  principles."  ^ 

In  many,  if  not  most.  States  the  law  has  been  changed  so 
that  the  half  blood  take  their  share  of  realty  as  well  as  person- 
alty equally  with  the  whole  blood. 

A  number  of  States  postpone  the  half  blood  to  the  whole 
blood  both  as  to  personalty  and  realty,  allowing  the  half  blood, 
however,  to  take  to  the  exclusion  of  the  next  class  in  distribu- 
tion whenever  there  are  none  of  the  whole  blood,  and  usually 
where  there  are  no  descendants  of  the  whole  blood. 

Another  class  of  States  (including,  for  instance,  INIissouri) 
allow  one  of  the  half  blood  to  take  half  the  share  coming  to  one 
of  the  whole  blood  both  as  to  realty  and  personalty;  so  that,  for 
example,  where  the  intestate  has  left  only  one  brother  of  the 
whole  blood,  and  one  of  the  half  blood,  the  former  will  take 
two-thirds  and  the  latter  one-third. 

Another  widely  prevailing  exception,  referring  to  ancestral 
estates,  is  mentioned  post,  §  76. 

§  72.  Posthumous  Children.  —  Children  of  the  intestate  born 
after  his  demise  are  entitled  to  claim  in  descent  and  distribution 
as  if  born  in  his  lifetime.  In  a  number  of  States  the  doctrine 
1  2  Bl.  Com.  505. 


§  73]  PROPERTY  OF  INTESTATES.  59 

is  limited  to  the  intestate's  children,  and  does  not  avail  the  chil- 
dren of  any  one  else  who  would  have  been  a  distributee  had 
he  not  died  before  the  intestate;  in  others  all  distributees  are 
included. 

Questions  sometimes  arise  in  respect  to  the  validity  of  the 
disposition  of  property  in  which  a  posthumous  child  has  an 
interest,  in  the  interval  between  the  parent's  death  and  the 
birth  of  such  child.  If  a  sale  is  made  by  all  the  existing  parties 
in  interest  as  an  extra-judicial  transaction,  it  cannot  affect  the 
interest  of  the  after-born  child.  Such  interest  did  not  pass  by 
the  sale.  But  sales  made  under  the  decree  of  a  court  having 
jurisdiction  have  been  upheld  as  passing  the  interest  of  the 
after-born  child,  though  it  could  not  be  made  a  party  to  the 
proceeding  by  name.  In  Knott  v.  Stearns,  91  U.  S.  638,  this 
ruling  is  rested  on  two  grounds:  First,  technically,  the  child 
possessed  no  interest  till  born;  its  interest  attaches  merely  to 
the  proceeds  of  the  property  in  the  shape  it  may  be  when  he  is 
born;  Second,  there  is  a  theory  in  equity,  recognized  in  most 
States,  that  parties  in  being,  possessing  an  estate  of  inheritance, 
are  regarded  as  so  far  representing  all  persons,  who,  being  after- 
wards born,  may  have  interests  in  the  same,  that  a  decree  bind- 
ing them  will  also  bind  the  after-born  parties;  and  that  a 
court  of  equity  may  bar,  by  its  decree  for  sale,  the  interest  of 
unborn  contingent  remaindermen,  who,  of  course,  could  not  be 
made  parties. 

§  73.  Adopted  Children.  —  Provision  is  made  in  the  several 
States  for  the  legal  adoption  of  children  by  others  than  their 
parents,  whereby  they  become  members  of  the  family  of  the 
person  or  persons  so  adopting,  and  by  force  of  the  statute  en- 
titled to  all  the  rights  accorded  by  the  law  to  natural  children, 
including  the  right  of  inheritance.  So  far  as  their  own  footing 
in  this  respect  is  concerned,  it  is  precisely  equal  to  that  of  other 
lawful  children;  and  hence  they  take  no  share  of  an  estate  willed 
to  others,  if  they  are  intentionally  omitted  in  the  will.  It  has 
been  held  that  the  right  of  inheritance  does  not  extend  to  in- 
heritance by  representation  through  the  adopting  father,  from 
another  person. 

There  is  conflict  as  to  what  becomes  of  the  estate  of  such 

adopted  child  when  it  dies  intestate  without  issue.    A  Missouri 


60  THE  LAW  OF  DECEDENTS'  ESTATES.  [§  74 

decision  gives  the  property  of  such  adopted  child  to  its  relations 
by  blood/  and  not  to  those  by  adoption;  while  in  Indiana  the 
contrary  is  held,  that  the  adopting  parents  take,  and  not  the 
natural  parents.^ 

Adoption  statutes  are  construed  liberally  in  favor  of  adopted 
children,  so  far  as  the  adoptive  parents  are  concerned;  but 
strictly  against  adoption  rights  through  third  persons,  at  least 
so  far  as  inheritance  is  concerned. 

Adoption  creates  a  status.  Under  well-established  principles 
of  interstate  law,  if  it  is  valid  by  the  laws  of  the  State  where 
made,  it  follows  the  adopted  child  into  any  other  State  where 
it  may  subsequently  acquire  a  domicile. 

§  74.  Illegitimate  Children.  —  According  to  the  common  law 
an  illegitimate  child  is  filius  nullius,  and  can  have  no  father 
known  to  the  law;  he  has  no  inheritable  blood,  and  can  there- 
fore be  the  heir  to  neither  his  putative  father  nor  mother,  nor 
any  one  else,  and  can  have  no  heir  but  of  his  own  body.  The 
rigor,  not  to  say  cruelty  of  the  civil  law,  which  denied  even 
maintenance  to  the  fruit  of  incestuous  intercom-se,  and  of  the 
common  law,  allowing  a  bastard  no  rights  but  such  as  he  himself 
acquires,  and  rendering  legitimation  impossible,  although  the 
parents  marry  after  birth,  has  been  much  relaxed  in  the  several 
States  of  the  Union. 

There  are,  in  the  first  place,  statutes  that  wholly  remove  the 
bar  sinister  in  ways  not  recognized  by  common  law. 

Thus,  in  nearly  all  the  States,  the  subsequent  marriage  of 
the  parents  legitimates  their  issue,  born  prior  to  marriage,  if 
acknowledged  by  the  father,  thus  cancelling  all  distinction  be- 
tween such  children  and  those  begotten  and  born  in  lawful 
wedlock.  Again,  in  some  States,  the  issue  of  marriages  which 
are  null  in  law  are  in  every  respect  legitimate,  and  inherit  and 
transmit  by  descent  as  if  born  in  lawful  wedlock. 

Apart  from  such  statutes  of  legitimation,  there  are  other 
provisions  giving  partial  relief  from  common-law  hardships. 
Thus  in  many  States,  even  where  there  is  no  subsequent  mar- 

»  Reinders  v.  Koppelmann,  68  Mo.  482.  In  Hockaday  v.  Lynn,  200 
Mo.  546,  it  is  held  that  the  adopted  child  does  not  inherit  through  the 
adopting  parent. 

^  Davis  V.  Krug,  95  Ind.  1. 


§§  75,  76]  PROPERTY  OF  INTESTATES.  61 

riage,  the  acknowledgment  of  paternity  by  the  father  (usually 
required  to  be  in  writing)  legitimizes  the  offspring  of  the  illegit- 
imate union,  so  far  as  the  right  of  the  child  to  inherit  from  the 
father  is  concerned,  and  in  many  States  puts  the  child  on  the 
footing  of  legitimacy  on  the  father's  side,  so  that  it  can  inherit 
from  collateral  sources.  Every  State,  it  is  believed,  provides 
that  the  illegitimate  inherits  from  his  mother;  and  with  few 
exceptions,  the  statutes  of  the  States  legitimate  him  on  the 
mother's  side  for  all  purposes  of  inheritance.  Where  such 
statutes  exist,  wiping  out  illegitimacy  as  between  mother  and 
offspring,  together  with  statutes  providing  that  the  father's 
acknowledgment  shall  give  the  offspring  the  right  to  inherit  from 
and  through  him  as  a  child  lawfully  begotten,  the  father's 
acknowledgment,  satisfying  the  statute,  gives  the  bastard  all 
rights  of  legitimate  oft'spring,  so  far  as  inheritance  is  concerned. 
Sundry  modifications  of  these  general  principles  embodied 
in  statutes,  must  be  sought  for  in  the  laws  of  the  respective 
States. 

§75.  Aliens  as  Heirs.  —  This  subject  was  included  (§  12, 
ante)  in  discussing  the  alien's  power  to  make  testamentary  dis- 
positions, and  his  rights  under  the  wills  of  others.  Reference  is 
made  thereto  to  obviate  repetition  here. 

§  76.  Ancestral  Estates.  —  Under  the  common  law,  which 
governed  the  descent  of  realty,  special  provision  was  made  as 
to  ancestral  estates.  An  ancestral  estate  is  an  interest  in  realty 
which  the  intestate  acquired  by  descent  or  by  devise  or  gift 
from  some  relative.  If  we  assume  a  case  where  the  nearest 
heir  of  the  intestate  is  on  his  mother's  side,  e.  g.,  his  mother's 
sole  brother's  sole  son,  it  is  proper  that,  as  a  rule,  the  estate 
of  the  decedent,  real  and  personal,  should  go  to  that  cousin. 
But  if  the  intestate  had  realty  which  came  to  him  from  his 
father  by  descent  or  devise,  it  might  well  be  urged  that  a  rela- 
tive on  the  father's  side  had  a  superior  equitable  claim  to  this 
specific  realty  which  came  from  the  father. 

This  doctrine,  backed  by  reasoning  based  on  feudal  law,  was 
recognized  at  common  law.  The  inheritance  of  ancestral  real 
estates  passed  by  common  law  to  the  lineal  and  collateral 
heirs  of  the  blood  of  such  ancestor  to  the  exclusion  of  other  heirs 
of  the  intestate.    The  common-law  rule  concerned  itself  only 


62  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  77 

with  realty.  There  were  no  ancestral  estates  In  personalty. 
In  most  States  this  doctrine  of  ancestral  estates  is  not  recognized; 
but  still  it  is  the  law  in  many  States,  being  one  of  the  few  in- 
stances whereby  our  law  of  descent  feels  the  influence  of  the 
old  English  system. 

The  term  "ancestor"  used  in  these  statutes  is  not  understood 
to  be  applicable  only  to  progenitors  in  its  usual  acceptation, 
but  in  its  technical  significance,  one  from  whom  an  estate  came 
directly  —  not  mediately  —  to  the  intestate  by  gift,  devise,  or 
descent,  so  that  in  this  sense  the  husband  may  be  his  wife's 
ancestor  under  the  American  statutes  when  such  give  the  wife 
a  place  among  the  heirs. 

It  is  also  to  be  noted  that  the  distinction  between  the  devo- 
lution of  ancestral  and  other  estates,  as  recognized  by  American 
statutes,  is  not  usually  construed  as  diverting  the  descent  of 
an  ancestral  inheritance  from  the  nearest  of  kin,  but  only  from 
those  not  of  the  ancestor's  blood  who  are  in  the  same  degree 
of  kinship  with  others  who  are  of  the  ancestor's  blood. 

Another  restriction  generally  put  upon  these  statutes  confines 
their  application  to  estates  descended  from  the  immediate 
ancestor  of  the  intestate. 

The  rights  of  the  half  blood  as  heirs  and  distributees  of  realty 
and  personalty,  at  common  law  and  under  statutes,  have  been 
discussed  ante,  §  71.  Whenever  a  State  recognizes  distinctions 
as  to  ancestral  estates,  whatever  its  legislation  may  be  as  to 
distinctions  between  half  blood  and  whole  blood  in  general  in- 
heritance, the  result  must  be  to  exclude  from  the  inheritance 
of  ancestral  estates  the  half  blood  which  is  not  of  the  line  from 
which  the  estate  came. 

An  exception  to  the  general  rules  of  descent,  cognate  in  its 
nature  to  the  above,  has  also  been  made  by  statute  in  some 
States  in  respect  to  the  devolution  of  property  granted  to  an 
intestate  in  consideration  of  love  and  affection,  though  not  by 
an  "ancestor,"  which,  in  case  of  the  death  of  such  grantee  with- 
out issue,  is  directed  to  revert  to  the  grantor. 

§  77.  Disinheritance  of  Heir  or  Devisee  who  kills  Ancestor.  — 
In  connection  with  the  provision  of  the  civil  law  excluding  from 
the  succession  an  heir  or  devisee  who  takes  or  attempts  the  life 
of  a  person  to  whom  he  should  succeed,  there  has  been  some 


§  78]  PROPERTY   OF   INTESTATES.  63 

diversity  of  opinion.  It  was  held  by  the  New  York  Court  of 
Appeals  that  the  common  law,  in  the  absence  of  specific  enact- 
ment, and  in  disregard  of  the  Statute  of  Descents,  excluded  such 
criminal  from  any  share  in  the  property  of  the  deceased.^  But 
subsequent  authority,  though  not  universal,  has  generally  re- 
pudiated this  view.  There  seems  to  be  no  escape  on  principle 
from  the  conclusion  that  at  common  law  and  under  the  statutes 
and  constitutions  of  the  various  States  of  the  Union,  courts  are 
not  warranted  in  disregarding  the  course  of  descent  and  dis- 
tribution, or  the  conclusiveness  of  duly  executed  wills,  to  divert 
the  succession  from  murderers  of  ancestors  or  descendants.^ 

§  78.  What  Law  governs  Descent  and  Distribution.  —  It  is  to 
be  borne  in  mind  that  the  distribution  of  personal  property  of 
an  intestate  must  be  according  to  the  law  of  the  country  or 
State  of  which  he  was  a  domiciled  inhabitant  at  the  time  of  his 
death,  without  regard  to  the  place  of  either  his  birth,  or  death, 
or  the  situation  of  the  property  at  the  time;  but  that  real  estate 
descends  according  to  the  law  of  the  place  where  it  is  situated. 
Nor  can  the  descent  be  governed  by  a  statute  not  in  force  on 
the  day  of  the  intestate's  death;  and  so  a  vested  remainder 
descends  under  the  law  in  force  at  the  time  of  the  vesting  of  the 
estate  in  expectancy,  not  affected  by  the  law  governing  descents 
at  the  termination  of  the  intervening  estate. 

1  Riggs  V.  Palmer,  115  N.  Y.  506. 

2  See  Woemer  on  Administration,  §  64.  In  addition  to  authorities 
there  cited  see  recent  cases  of  Gollnick's  Estate  (Minn.),  128  Northwestern 
492;  Kuhn  v.  Kuhn,  125  Iowa  449.  The  New  York  view  was,  however, 
followed  in  Perry  v.  Strawbridge,  209  Mo.  621. 


64  THE   L.\W  OF  DECEDENTS'  ESTATES.  [§  79 


CHAPTER  IX. 

PROVISIONAL  ALIMONY   OF  THE   FAMILY. 

§  79.  Nature  of  Allowance  to  Family.  —  It  has  already  been 
noticed  that  the  power  of  testamentary  disposition  is  Hmited, 
in  some  respects,  by  the  poHcy  of  the  law,  which  places  certain 
rights  beyond  the  caprice  of  a  testator.  One  of  these  is  the  right 
of  the  surviving  members  of  his  family  to  the  necessary  means 
of  subsistence,  raiment,  and  shelter  during  the  period  immedi- 
ately succeeding  his  death,  which  the  law  enforces  not  only 
against  any  inconsistent  testamentary  disposition,  but  equally 
against  creditors,  heirs,  and  distributees,  whose  rights,  like 
those  of  legatees,  are  controlled  by  and  postponed  to  the  pro- 
visions made  for  the  surviving  family  in  this  respect. 

These  provisions,  like  the  kindred  subject  of  the  homestead 
exemption  laws,  are  of  purely  American  origin.  They  owe  their 
existence  to  a  humane  and  benevolent  consideration  of  the  dis- 
tress and  helplessness  of  widows  and  orphans  newly  bereft  of 
their  protector  and  supporter,  and  to  a  wise  public  policy, 
recognizing  the  true  relation  of  the  State  to  the  Family  as  its 
organic,  constituent  element. 

The  common  law  secures  to  the  wadow  her  dower,  and  to  the 
w^dow  and  children  their  jjars  rationabilis  (corresponding  to 
dower  and  distribution  under  American  statutes),  but  no  pro- 
vision whatever  is  therein  found  to  meet  the  exigencies  arising 
immediately  upon  the  death  of  the  head  of  a  family,  save,  per- 
haps, the  clause  in  Magna  Charta  securing  to  the  widow  the 
right  to  remain  in  her  husband's  capital  mansion  for  forty  days 
after  his  death,  within  which  time  her  dower  was  to  be  assigned. 
These  rights  are  secured  to  the  widow  to  an  equal  extent  in  all 
the  States,  aside  from  the  subject  now  under  consideration, 
and  in  addition  to  the  exemption  from  execution  of  certain 
property  necessary  to  the  family  during  the  lifetime  of  the 
husband,  and  which  are  in  many  instances  continued  in  favor 
of  the  widow  or  minor  children  upon  his  death. 


§§  80,  81]        PROVISIONAL  ALIilONY  OF  THE  FAMILY.  65 

These  provisions  for  the  protection  of  the  family  consti- 
tute no  gift  to  the  widow  to  repair  any  seeming  injustice  in  the 
Statute  of  Distribution  or  the  will  of  her  husband,  but  are  in- 
tended to  furnish  to  her  and  her  minor  children  the  means  of 
temporary  maintenance  out  of  the  estate  of  the  deceased  hus- 
band until  their  interest  therein  can  be  set  out  to  them. 

These  allowances  do  not  come  to  the  widow  or  family  by 
inheritance  through  the  deceased's  estate,  but  from  the  law  and 
through  the  order  of  court.  Neither  do  they  form  part  of  the 
widow's  distributive  share  as  next  of  kin,  unless  so  expressed 
by  the  statute. 

§  80.  The  Extent  and  Mode  of  Allowance.  —  Some  of  the 
States  mention  specific  articles  thus  set  apart  for  the  family, 
in  which  provisions  play  a  prominent  part,  frequently  providing 
that  in  absence  of  the  specified  things  their  value  may  be  taken 
from  the  estate.  In  others  the  amount  is  fixed  without  mention 
of  special  articles.  In  still  others  the  quantum  of  allowance  is 
not  fixed  by  statute,  but  left  to  the  discretion  of  the  Probate 
Court,  sometimes  with  provision  for  Commissioners  who 
report  to  the  court. 

§  81.  Rules  governing  the  Amount  of  the  Allowance.  —  When 
the  amount  is  not  fixed  by  statute,  in  exercising  the  discretion 
vested  in  them,  Probate  Courts  or  the  Commissioners  appointed 
by  them  to  designate  and  set  apart  the  property  and  money 
allowed  for  the  provisional  maintenance  of  the  family  are  not 
to  proceed  in  an  arbitrary  or  capricious  manner,  but  must 
exercise  a  sound  judicial  discretion. 

In  determining  the  amount  necessary  for  such  purpose, 
regard  may  be  had  to  the  state  of  the  health,  age,  and  habits 
of  the  widow,  the  number  and  age  of  the  children  immediately 
dependent  upon  her,  as  well  as  the  value  of  the  estate  and  of 
her  dower  and  distributive  share  therein.  It  may  also  be  con- 
sidered whether  or  not  she  is  accustomed  to  hard  labor,  and 
thus  enabled  to  support  herself,  or  whether  by  reason  of  ill 
health  or  other  circumstances  she  is  unable  to  do  so.  A  smaller 
amount  will  be  proper  in  the  former  case  than  that  which  may 
be  necessary  in  the  latter.  When  the  statute  fixes  the  time 
for  the  duration  of  which  the  allowance  is  to  be  made,  it  must, 
of  course,  be  sufficient  to  secure  the  reasonable  comfort  of  the 


66  THE  hXW  OF  DECEDENTS'  ESTATES.  [§§  82-84 

family  during  the  whole  of  such  period,  if  used  with  ordinary 
prudence  and  economy.  If  the  estate  is  large,  apparently 
solvent,  and  the  allowance  merely  an  anticipation  of  the  widow's 
distributive  share,  a  more  liberal  allowance  will  be  justified 
than  where  it  is  small  or  insolvent;  and  what  would  be  a  reason- 
able allowance  for  one  accustomed  to  privation  and  labor  might 
be  very  unreasonable  for  one  raised  in  affluence. 

§  82.  To  what  Extent  Liberality  should  govern  the  Court.  — 
The  tendency  of  courts  has  generally  been  to  give  full  effect  and 
realization  to  the  humane  and  enlightened  policy  which  dic- 
tated these  enactments,  by  construing  their  pro\'isions  in  the 
same  spirit  of  liberality  and  consideration.  Not  so  as  to  make 
them  a  cloak  to  cover  up  a  substantial  invasion  of  the  rights 
of  creditors,  but  so  as  to  resolve  all  reasonably  doubtful  ques- 
tions in  favor  of  the  widow  and  children.  Cases  illustrative 
of  the  way  in  which  courts  exercise  their  discretion  in  fixing 
the  amount  of  the  allowance,  and  further  discussion  as  to  the 
tendencies  of  various  States  will  be  found  in  Woerner  on  Ad- 
ministration, §  81. 

§  83.  The  Allowance  with  Respect  to  Solvency  or  Insolvency 
of  the  Estate.  — The  right  of  the  widow  and  children  is  para- 
mount to  that  of  creditors,  and  hence  does  not  depend  upon  the 
solvency  or  insolvency  of  the  estate.  In  many  of  the  States 
provision  is  made  by  statute  that  where  the  estate  does  not 
exceed  in  value  a  certain  specified  amount,  or  the  amount  to 
which  the  widow  or  children  are  entitled  absolutely,  no  adminis- 
tration shall  be  necessary,  but  all  the  property  of  the  estate  is 
to  be  assigned  and  turned  over  to  the  widow,  or  if  no  widow, 
to  the  minor  children.  But,  as  we  have  seen,  insolvency  should 
affect  the  exercise  of  judicial  discretion. 

§  84.  Separate  Property  of  the  Widow  affecting  the  Allowance. 
—  In  some  States  the  statute  makes  the  existence  of  separate 
property  in  the  widow  an  element  for  consideration  in  fixing 
the  allowance,  going  so  far  in  some  States  {e.  g.,  Texas)  as  to 
refuse  all  allowance  if  she  has  independent  means.  In  Massa- 
chusetts, where  the  statute  contains  no  direction  on  the  point, 
thus  leaving  it  to  judicial  discretion,  the  court  refused  all 
allowance  to  a  woman  who  had  sufficient  separate  property. 
But  in  most  other  States,  and  particularly  where  the  articles 


§§  85,  86]        PROVISIONAL  ALIMONY   OF  THE  FAMILY.  67 

of  property  allowed  are  enumerated  by  statute,  the  widow  and 
children  are  entitled  to  this  allowance  irrespective  of  any  sep- 
arate property  she  or  they  may  have. 

§  85.  The  Will  as  barring  the  Allowance.  —  It  is  held  in  a 
few  States  that  where  there  is  a  will  making  provision  for  the 
widow  she  is  not  entitled  to  the  allowance  unless  she  renounces 
the  provisions  of  the  will.  But  where  the  testamentary  pro- 
vision is  not  expressly  or  clearly  intended  to  be  in  lieu  of  the 
statutory  allowance,  the  requirement  to  renounce  seems  to 
ignore  and  defeat  the  very  object  and  intent  of  the  law,  which 
is  "  merely  to  furnish  her  with  a  temporary  allowance,  by  which 
she  can  support  herself  and  dependent  children  until  her  interest 
in  the  estate  can  be  set  out  to  her,"  and  the  more  rational  view 
seems  to  be  that  she  is  entitled  to  the  allowance  in  addition  to 
the  provision  made  in  the  will,  and  that  the  husband  cannot 
deprive  his  widow  of  the  allowance  provided  for  by  the  statute 
by  any  provision  in  his  will.  In  one  or  two  States  the  courts 
hold  that  she  is  entitled  both  to  her  statutory  allowance  and  a 
provision  in  the  will  expressed  to  be  given  in  lieu  of  such  allow- 
ance, but  generally  where  the  provision  in  the  will  is  clearly 
inconsistent  with  taking  the  statutory  allowance  the  widow 
is  put  to  an  election  as  to  which  she  will  accept. 

§  86.  How  affected  by  Marriage  Settlements.  —  When  a  mar- 
riage settlement  is  set  up  as  a  bar  to  a  claim  for  the  widow's 
allow^ance,  the  court  construes  the  agreement  strictly  in  favor 
of  the  widow.  Thus  an  ante-nuptial  settlement  whereby  the 
wife  released  all  her  rights  in  the  estate  "whether  of  dower,  or 
distributive  share,  or  otherwise"  was  held  not  to  bar  the  statu- 
tory allowance.^  But  this  decision  is  said  to  go  further  than 
the  authorities  generally  warrant.^  A  more  cogent  reason  that 
might  be  urged  would  seem  to  be  that  these  laws  rest  upon  a 
sound  public  policy,  and  that  contracts  running  contrary  thereto 
are  for  that  reason  and  to  that  extent  void.  It  is  the  policy  of 
the  law  to  preserve,  as  far  as  possible,  the  integrity  and  con- 
tinuity of  the  family,  and  to  protect  it  even  against  the  thought- 
lessness and  improvidence  of  men  and  women.  It  is  to  be  ob- 
served, however,  that  this  right  on  the  part  of  a  widow  to  repu- 

1  Pulling  V.  Durfee,  85  Mich.  34. 

2  See  Dellner  v.  Dellner,  141  Wis.  255,  s.  c.  124  N.  W.  278. 


68  THE   LAW   OF  DECEDENTS'   ESTATES.  [§§  87,  SS 

diate  an  executory  marriage  contract  no  longer  exists  after  she 
has  deliberately  accepted  its  terms;  in  other  words,  she  cannot 
both  execute  and  repudiate  the  contract,  and  the  children  are 
bound  by  her  election.  And,  when  not  affecting  minor  children, 
it  is  generally  held  that  a  fair  ante-nuptial  agreement  relin- 
quishing the  right  to  the  allowance  is  not  void,  but  will  be  en- 
forced against  the  widow  in  the  proper  tribunal,  and  her  con- 
tract held  to  be  binding  upon  her.  And  also  that  articles  of 
separation  between  husband  and  wife,  based  on  a  valuable 
consideration,  wherein  these  provisions  for  the  widow  are 
relinquished,  debar  her  from  these  statutory  allowances. 

§  87.  How  affected  by  Liens  or  Preferred  Debts  of  the  Dece- 
dent. —  Since  the  property  allowed  to  the  widow  is  not,  in  most 
States,  treated  as  assets  of  the  estate,  it  would  seem  to  follow 
that  the  widow  is  entitled  to  it  in  preference  to  general  creditors 
of  any  kind,  whether  for  ordinary  debts  of  the  decedent,  expenses 
of  the  last  sickness,  or  even  funeral  expenses,  and  charges  for 
settling  the  estate.  On  the  other  hand  as  a  general  rule  the 
widow  takes  the  property  she  claims  subject  to  specific  liens 
existing  against  her  husband's  title;  otherwise  she  would  have 
a  better  title  than  had  the  deceased  husband  through  whom 
she  takes.  But  in  several  States,  notably  Pennsylvania,  the 
widow  takes  her  allowance  freed  from  certain  liens  which  rested 
on  it  at  her  husband's  death.  The  rulings,  dependent  on  con- 
struction of  statutes,  vary  largely. 

§  88.  When  the  Allowance  takes  Effect.  —  The  right  of  the 
widow  to  the  money  or  property  allowed  for  her  and  her  family's 
temporary  support  is  held  in  some  States  to  be  absolute,  and 
to  vest  at  once  upon  the  husband's  death.  In  others,  it  is  held 
to  vest  upon  confirmation  or  allowance  by  the  probate  court,  or 
selection  by  the  widow  or  guardian  of  minor  children,  and  may 
then  be  recovered  by  her  personal  representative;  and  if  the 
allowance  to  her  is  of  such  articles  as  she  may  have  chosen, 
and  if  they  are  sold,  although  by  her  consent,  but  without  a 
waiver  of  her  claim  te  an  allowance,  she  is  entitled  to  the  avails 
thereof.  The  absolute  title  of  the  widow,  and  in  the  absence  of 
a  widow,  of  the  minor  children,  to  the  property  allowed  them 
for  temporary  support,  follows  of  necessity  in  all  of  those  States 
in  which  it  is  assigned  to  the  widow  or  children  without  further 


§§  89,  90]        PROVISIONAL  ALBIOXY   OF  THE   FAMILY.  C9 

administration,  when  it  appears  that  the  total  value  of  the 
estate  does  not  exceed  the  amount  so  allowed;  for  the  abandon- 
ment of  further  administration  rests  solely  upon  the  ground 
that  there  is  no  property  to  administer,  because  what  property 
the  decedent  may  have  left  is  the  property  of  the  widow  or 
children,  in  which  no  other  person  has  any  interest.  Where 
it  is  ruled  that  her  title  accrues  only  on  allowance  by  the  court 
or  a  formal  setting  apart  of  the  property  (which,  however,  is 
not  the  rule  in  most  States),  it  would  seem  that  her  death  prior 
to  such  event  would  abate  the  whole  claim;  and  it  has  been  so 
held  in  several  States.  Whether  the  widow's  remarriage  ter- 
minates her  interest  in  the  allowance,  has  been  differently  de- 
cided under  varying  statutes.  The  decision  would  seem  to 
turn  largely  on  the  nature  of  her  right  in  the  allowance  as  above 
set  forth. 

§  89.  What  constitutes  a  Family.  —  The  terms  used  to  desig- 
nate the  recipients  of  this  bounty  are  commonly  "widow," 
"widow  and  children,"  or  "widow  and  her  family."  The 
number  of  persons  constituting  a  family  is  sometimes  an  im- 
portant circumstance  in  ascertaining  the  proper  amount  to 
be  allowed  for  their  maintenance  and  support,  and  it  is  therefore 
necessary  that  the  legal  meaning  of  the  term  be  understood.  It 
may  be  difficult  to  define  the  word  accurately  and  scientifically, 
so  as  to  include  all  the  specific  significations  to  which  it  is 
applied;  but  its  popular  meaning,  and  the  sense  in  which  it  is 
used  in  the  statutes  under  consideration,  seem  to  be  plain. 
Illustrations  can  be  gathered  from  the  cases  cited  in  §  86  of 
Woemer  on  Administration. 

§  90.  Allowance  to  Widow  Alone.  —  Although  the  statute  pro- 
vide this  allowance  for  "the  widow  and  children  constituting 
the  family  of  the  deceased,"  the  widow  alone  may  take,  if 
there  are  no  children.  Where  the  allowance  is  to  the  widow 
and  children,  it  must  be  paid  directly  to  the  widow;  the  chil- 
dren are  entitled  to  no  part  of  it.  A  woman  who  has  been  di- 
vorced from  her  husband  is  self-evidently  not  entitled  to  this 
allowance,  nor  indeed  to  any  share  in  the  estate  of  her  former 
husband;  having  ceased  to  be  his  wife  during  his  lifetime,  she 
cannot  be  considered  his  widow  after  his  death.  Whether  the 
wife  who  has  deserted  her  husband  without  cause  is  entitled 


70  THE   LAW  OF  DECEDENTS'   ESTATES.  [§§  91,  92 

to  the  allowance  on  his  death  is  decided  both  ways  in  different 
States  depending  on  the  statutes  and  their  construction.^ 

§  91.  Allowance  to  the  Children  Alone.  —  As  the  widow  alone, 
if  there  are  no  children,  may  claim  the  allowance  under  a  stat- 
ute securing  it  to  the  widow  and  children,  so  the  children  alone 
are  entitled  if  there  is  no  widow.  Their  right  does  not  depend 
upon  the  assertion  of  it  by  the  mother.  And  where  the  children 
of  a  former  wife  live  separate  from  the  widow,  under  the  control 
of  their  guardian,  it  is  the  duty  of  the  probate  court  to  make  such 
an  apportionment  between  the  widow  and  the  children  as  will, 
under  the  circumstances,  and  taking  into  account  the  sum 
necessary  for  the  support  of  each,  be  just  and  equitable. 

§  92.  Out  of  what  Property  to  be  allowed.  —  Since  the  ad- 
ministration of  estates  is  ordinarily  confined  to  the  personal 
property  left  by  a  decedent,  and  the  executor  or  administrator 
is  usually  his  personal  representative,  his  real  estate  passing 
at  once  to  the  heirs,  devisees,  or  dowress,  the  allowance  for 
the  temporary  support  of  the  widow  and  family  is  not,  in  most 
States,  made  a  charge  upon  the  real  estate,  but  granted,  gener- 
ally, out  of  the  personal  property  left  by  the  decedent  only. 
Hence  money  representing  the  proceeds  of  real  estate  cannot 
be  allowed  to  the  widow  under  this  claim,  although  she  be 
entitled  to  all  the  personalty  of  the  estate,  leaving  the  expenses 
of  administration  to  be  deducted  out  of  the  proceeds  of  the  sale 
of  real  estate.  Where  the  statute  enumerates  the  specific 
property  to  which  the  widow  is  entitled,  the  allowance  must 
be  out  of  such  articles  actually  on  hand  at  the  time  of  the  hus- 
band's death,  and  no  property  or  money  not  on  hand  can  be 
assigned  to  her.  But  if  the  articles  so  enumerated,  or,  where 
she  has  the  right  to  select,  the  articles  so  selected,  are  sold  by 
the  executor  or  administrator,  she  is  entitled  to  the  proceeds 
of  the  sale.  Where  the  statute  fails  to  designate  the  specific 
nature  of  the  allowance,  it  may  be  allotted  in  mone}'.  It  is 
self-evident  that  there  can  be  no  allowance  to  the  widow  or 
children  out  of  property  to  which  the  decedent  had  no  title 
at  the  time  of  his  death.  The  allowance  in  most  States  cannot 
be  made  out  of  partnership  property,  as  such,  of  a  firm  of  which 
deceased  was  a  member.  But  it  may  be  set  apart  out  of  property 

^  See  Woerner  on  Administration,  §  S9. 


§  93]  PROVISIONAL  ALIMONY  OF  THE  FAMILY.  71 

in  which  deceased  had  an  undivided  interest  to  the  extent  of 
such  interest.  And  the  allowance  may  be  made  out  of  proceeds 
of  Hfe  insurance  whenever  such  is  assets,  and  Ukewise  out  of 
Government  gratuities  or  appropriations  in  the  nature  of  pen- 
sions for  past  services  to  the  Government  given  to  the  "legal 
representatives"  of  the  deceased  and  exempted  from  his  debts. 
When  property  is  set  apart  to  the  widow  as  her  allowance,  she 
receives  the  same  title  her  deceased  husband  had,  and  the  court 
of  probate  has  no  jurisdiction  to  determine  the  title  as  between 
her  and  third  parties  claiming  title  paramount  to  that  of  the 
decedent.  The  widow's  right  extends  only  to  property  possessed 
by  deceased  at  the  time  of  his  death. 

§  93.  Time  and  Procedure  to  obtain  the  Allowance.  —  Where 
the  widow  herself  administers  the  estate,  she  can  easily  avail 
herself  of  the  benefit  of  the  provisions  made  in  her  favor  by 
simply  taking  credit  in  her  settlement  with  the  court  for  the 
amount  allowed  her  by  order  of  court,  the  award  of  appraisers 
or  commissioners,  or  the  amount  fixed  by  the  statute.  In 
such  case,  also,  she  will  rarely  suffer  in  consequence  of  neglect 
or  tardiness  in  taking  the  necessary  steps  to  secure  her  allowance. 
But  in  many  cases  it  is  impracticable  for  her  to  administer,  either 
from  age,  infirmity,  ignorance,  or  inability  to  give  bond,  and 
then,  from  the  exigency  of  her  situation  and  the  very  nature 
of  the  relief  secured  to  her  by  the  statutes  under  consideration, 
a  speedy  and  summary  remedy  to  obtain  her  rights  is  indispen- 
sable, and  is  in  most  States  provided  by  enabling  the  widow 
to  obtain  her  allowance  by  simple  motion  or  petition,  if  the 
court  or  commissioners  should  omit  to  grant  it  without  such 
motion. 

Where  the  entire  estate  is  not  greater  than  allowed  to  a  widow 
without  administration,  she  may  defend  her  title  in  equity,  al- 
though the  probate  court  has  made  no  order  in  the  matter; 
and  even  so  where  there  has  been  no  administration,  since  the 
equitable  title  is  in  her,  and  where  the  amount  is  less  than  the 
widow's  allowance,  she  can  maintain  an  action  against  a  mere 
intruder,  though  there  has  been  no  administration.  Where  an 
application  by  the  widow  or  minor  children  is  necessary  at  all, 
it  should  be  made  as  early  as  possible,  since,  as  a  general  rule, 
it  cannot  be  entertained  when  the  time  for  which  the  temporary 


72  THE  LAW  OF  DECEDENTS'  ESTATES.  [§§  94-96 

allowance  was  intended  has  expired.  In  Alabama  and  Texas 
it  is  the  imperative  duty  of  the  judge  of  probate  to  make  the 
allowance,  upon  or  without  the  motion  of  the  widow,  and 
the  widow  and  children  do  not  forfeit  or  lose  their  right  to  the 
same  from  their  neglect  to  apply  or  the  failure  of  the  probate 
judge  to  make  it  in  time.  In  Missouri  by  the  terms  of  the 
statute,  the  allowance  may  be  claimed  at  any  time  before  it  is 
paid  out  in  discharge  of  debts,  or  distributed;  but  where  the 
personal  assets  are  exliausted  before  the  claim  is  made,  it 
cannot  be  allowed  out  of  the  proceeds  of  real  estate  sold  for 
debts. 

§  94.  Additional  Allowance.  —  Wliether  a  second  claim  for 
the  widow's  allowance  can  be  entertained  or  granted,  must 
obviously  depend  upon  the  nature  of  the  original  allowance. 
If  this  was  intended  for  immediate  relief  only,  and  was  granted 
before  there  was  an  opportunity  of  determining  the  extent  of 
the  allowance  to  which  the  situation  of  the  widow  and  her 
family,  the  value  of  the  property  left  by  the  deceased,  the 
amount  of  debts,  and  other  circumstances  entitled  her,  it  is 
apparent  that  such  allowance  cannot  be  looked  upon  as  an 
adjudication  upon  the  matter,  and  that,  in  the  absence  of  a 
restraining  statute,  the  probate  court  has  power  to  make  a  new 
allowance  upon  proper  proof  of  the  circumstances  justifying  it. 
The  petition  for  further  allowance  must  show  that  the  former 
provision  is  insufficient  or  exhausted. 

§  95.  What  Law  governs.  —  The  widow's  right  to  an  allow- 
ance including  its  character  and  amount  is  generally  deter- 
mined by  the  law  in  force  at  the  time  of  the  husband's  death, 
but  that,  as  in  similar  collisions  between  the  rights  of  creditors 
and  others,  the  rights  of  creditors  cannot  be  impaired  by  sub- 
sequent legislation;  consequently,  the  surviving  widow's  claim 
is  determined,  as  to  the  debts  of  the  husband,  by  the  law  in 
force  at  the  time  they  were  contracted,  and  cannot  be  enlarged 
by  later  enactments. 

§  96.  Scope  of  the  Subject.  —  The  reader  is  remmded  that 
in  treating  a  subject  such  as  that  covered  in  this  chapter  which 
is  of  purely  statutory  origin,  with  almost  countless  diversities 
in  detail  under  the  laws  and  decisions  of  the  different  States, 
this  treatise  attempts  nothing  beyond  giving  the  general  trend 


§  96]  PROVISIONAL  ALIMONY  OF  THE   FAMILY.  73 

of  legislation,  noting  points  of  importance  on  which  the  States 
take  opposing  views,  and  calling  attention  here  and  there  to 
some  interesting  view  peculiar  to  some  State.  For  further  detail 
the  reader  is  referred  to  Woerner  on  Administration,  from  which 
this  book  is  compiled. 


74  THE  LAW   or  DECEDENTS'  ESTATES.  [§  97 


CHAPTER  X. 

EXEMPTION  OF  THE  HOMESTEAD. 

§  97.  Nature  of  the  Homestead  Right  of  the  Surviving  Family. 
—  The  policy  which  dictates  provision  for  the  support  of  the 
family  immediately  after  the  death  of  its  natural  provider  and 
protector  also  requires  the  homestead  to  be  secured  to  the  sur- 
vi\^ng  husband  or  widow  and  minor  children.  The  obvious 
intent  of  homestead  laws  is  no  less  to  secure  a  home  and  shelter 
to  the  family,  when  bereft  of  its  father  or  mother,  beyond  the 
reach  of  financial  misfortune,  which  even  the  most  prudent 
and  sagacious  cannot  always  avoid,  than  to  protect  citizens  and 
their  families  from  the  miseries  and  dangers  of  destitution  by 
protecting  the  wife  and  children  against  the  neglect  and  im- 
providence of  the  father  and  husband.  The  homestead  exemp- 
tion would  be  divested  of  its  most  essential  and  characteristic 
feature,  if,  upon  the  death  of  the  head  of  the  family,  it  should  be 
withdrawn  from  the  widow  and  children;  hence  nearly  all  the 
statutes  upon  this  subject  provide  for  its  continuance  to  the  sur- 
viving constituents  of  the  family.  Homestead  statutes  provide 
for  two  situations.  First,  during  the  life  of  the  head  of  the  fam- 
ily, they  exempt  the  homestead  from  creditors'  claims;  secondly, 
they  give  rights  in  the  homestead  after  the  death  of  the  head 
of  the  family  to  its  sur\nving  members.  It  is  the  right  of  sur- 
viving members  of  the  family  that  falls  within  the  scope  of  this 
treatise. 

The  statutes  of  the  States  present  two  theories,  often  with 
inconsistent  exceptions  or  blending  of  the  two  ideas,  as  to  the 
nature  of  the  interest  of  the  survivors  in  the  homestead. 

On  one  theory  the  homestead  exemption  descending  to  widows 
and  minors  is  not  strictly  an  estate,  or  property,  given  as  such 
to  those  entitled  to  it  under  the  homestead  law;  but  rather  a 
privilege,  extended  to  the  beneficiaries  thereof,  protecting  them 
in  the  enjoyment  of  property  to  which  it  applies  against  the 
claims  of  creditors  or  the  rights  of  adult  heirs;  as  creditors  could 


§  9S]  EXEMPTION   OF  THE   HOMESTEAD.  75 

not  enforce  their  demands  out  of  the  property  constituting  the 
homestead  during  the  hfetime  of  the  debtor,  so  no  creditor, 
either  of  the  decedent,  or  of  any  member  of  the  surviving  family, 
nor  adult  heirs,  can  enforce  them  after  his  death,  so  long  as 
there  is  a  family,  or,  in  most  States,  a  widow. 

But  on  another  theory  adopted  in  some  of  the  States,  the 
homestead  is  not  a  mere  exemption  in  favor  of  the  widow,  but 
passes  to  her  an  absolutue  estate,  in  derogation  of  the  rights 
not  only  of  creditors,  but  also  of  the  heirs. 

It  is  believed  that  this  difference  of  view  as  to  the  nature  of 
homestead  is  at  the  bottom  of  much  divergence  in  the  decisions 
on  many  points;  such  as  the  widow's  right  to  abandon  the  home- 
stead, or  to  sell  it. 

§  98.  What  Tenement  constitutes  the  Homestead.  —  The 
homestead  thus  transmitted  to  the  surviving  family  of  one 
dying  is  the  homestead  in  fact,  —  the  dwelling-place  occupied 
by  the  family,  with  all  the  land  and  its  appurtenances  to  the 
extent  allowed  by  the  statute,  including  the  crops  growing 
thereon  at  the  time  of  the  death.  Subsequent  appreciation  or 
depreciation  in  the  value  of  the  property  does  not  affect  the 
tenure.  Unless  so  expressed  by  statute,  the  survivors  do  not 
acquire,  in  consequence  of  such  death,  the  right  to  select  a 
homestead  out  of  the  body  of  the  decedent's  estate;  and  where 
the  statute  confers  such  right,  the  homestead  must  be  set  out 
and  determined  by  the  proper  tribunals  in  accordance  with  the 
statutory  provisions. 

The  widow  and  children  take  the  same  estate  which  the  de- 
ceased husband  or  father  possessed  in  the  homestead,  and  no 
greater;  if  the  estate  is  less  than  a  fee,  it  ceases  with  the  expira- 
tion of  the  term.  Possession  alone,  without  ownership  in  the 
land  as  a  basis  for  the  homestead  claim,  cannot  be  set  up  to 
defeat  a  recovery  in  ejectment  under  a  paramount  legal  title; 
nor  can  the  widow  or  minor  children  claim  exception  from  the 
bar  of  limitation.  Nor  is  the  mere  intention  of  the  decedent 
to  occupy  a  particular  tract  of  land  as  a  homestead,  who  died 
before  such  intention  was  carried  into  effect,  sufficient  to  entitle 
the  widow  to  the  exemption  of  such  tract  as  a  homestead.^ 

1  For  authorities  on  these  propositions  see  Woemer  on  Administration 
§95. 


76  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  99 

§  99.  Homestead  Rights  of  the  Widow.  —  The  rights  of  the 
widow  to  the  property  constituting  her  homestead  are  to  be 
distinguished  according  to  the  nature  of  her  relation  to  the  same. 
If  she  be  the  owner  of  the  property  in  fee,  which  she  may  oc- 
cupy as  the  head  of  a  family  or  otherwise,  the  law  makes  no 
distinction  between  her  and  homestead  tenants  in  general,  either 
as  to  the  liability  of  such  property  for  her  own  debts,  or  as  to 
any  incidents  affecting  her  right  to  the  same.  But  if  the  prop- 
erty passed  to  her  from  her  deceased  husband,  not  by  devise 
or  the  law  of  descent,  or  as  dower,  but  by  the  statute,  so  as  to 
be  enjoyed  by  her  as  a  homestead,  she  holds  such  property 
exempt  from  the  claims  of  creditors,  her  late  husband's  as  well 
as  her  own,  and  mostly,  also,  against  her  husband's  heirs. 
This,  as  has  been  shown,  is  the  law  in  most  States,  giving  her 
the  enjoyment  of  the  homestead,  whether  there  be  a  child  or 
children  or  not,  either  for  the  period  of  her  natural  life,  or  as 
long  as  she  may  remain  unmarried,  subject  to  the  cotenancy 
of  minor  children.  If  there  be  no  children  at  all,  or  no  minor 
children,  she  takes  the  homestead  as  the  remaining  constituent 
of  the  family  for  whose  protection  the  law  is  intended.  In 
some  States,  however,  this  view  is  not  deemed  warranted  by 
the  language  of  the  constitution  or  statute,  on  the  ground  that 
the  homestead  is  a  mere  exemption  against  creditors,  and  cannot 
avail  the  widow  against  the  heirs. 

Where  the  widow's  right  to  a  homestead  is  made  dependent 
upon  the  existence  of  a  family,  not  defined  in  the  statute  creating 
the  right,  it  is  difficult  sometimes  to  determine  what  constitutes 
a  family.  This  subject  is  treated  in  connection  with  the  pro- 
visional alimony  for  the  family,  and  the  reasons  and  authori- 
ties given  there  as  determining  the  question  apply  with  equal 
force  to  the  subject  of  homestead.^ 

For  the  reasons  mentioned  in  connection  with  the  provisional 
alimony  of  the  family  and  in  treating  of  the  widow's  right  to 
dower,  non-resident  widows  or  minor  children  can  have  no 
right  to  a  homestead  under  the  exemption  laws  of  the  husband's 
or  father's  domicile  at  the  time  of  his  death.  But  since  the 
husband's  domicile  draws  to  it  the  domicile  of  his  wife,  the  in- 
voluntary absence  from  the  State,  or  an  absence  not  amounting 
^  See  Woerner  on  Administration,  §  88. 


§§  100-102]  EXEMPTION   OF  THE  HOMESTEAD.  77 

to  abandonment  or  desertion  of  the  husband  would  not,  it  seems, 
mihtate  against  her  homestead  rights;  hence  the  mere  fact  of 
her  never  ha\'ing  been  in  the  State  does  not  debar  her. 

§  100.  The  Homestead  as  affected  by  the  Widow's  Dower,  — 
The  purpose  of  the  homestead  acts  is  to  secure  a  home  for  the 
family,  inchiding  the  widow  within  the  scope  of  the  beneficial 
intent  only  in  so  far  as  she  may  represent,  or  constitute,  a 
member  of  the  family.  It  is  therefore  a  question  whether  the 
widow  is  intended  to  enjoy  the  benefit  of  her  dower  in  the  land 
of  her  deceased  husband  and  her  homestead  cumulatively,  or 
whether  her  claim  to  or  acceptance  of  the  one  excludes  her  in- 
terest in  the  other.  In  most  of  the  States  this  question  is  de- 
termined by  the  statutes  themselves;  and  as  these  differ  from 
each  other,  so  a  different  conclusion  is  reached  in  the  different 
States  by  the  courts  called  upon  either  to  construe  doubtful 
phraseology  of  statutes,  or  to  announce  the  principle  governing 
where  the  statutes  are  silent, 

§  101.  The  Widow's  Right  to  sell  the  Homestead.  —  Whether 
the  widow  can  assign,  convey,  or  sell  her  right  to  the  homestead 
is  a  matter  of  some  doubt,  and  the  authorities  are  not  harmoni- 
ous. The  language  of  the  statute  securing  the  right  to  the  widow 
must  be  decisive,  of  course,  and  in  many  instances  leaves  no 
doubt  in  this  respect;  but  it  is  not  always  clear  enough  to  enable 
courts  to  reach  a  conclusion  without  recourse  to  construction. 
If  the  right  to  the  homestead  consists  of  the  mere  exemption 
from  compulsory  sale  for  debts,  or  even  of  a  present  right  to 
possession  as  against  heirs,  it  seems  to  result  that  the  right  ceases 
as  soon  as  the  owner  thereof  abandons  the  homestead,  or 
surrenders  possession  to  a  grantee,  and  then  the  owner  of  the  fee 
is  entitled  to  possession.  In  such  case  a  sale  would  pass  no 
right  whatever  to  the  vendee,  because  the  great  object  of  the 
law,  to  secure  a  fixed  home  for  the  family,  would  be  defeated 
by  permitting  the  alienation  of  that  home.  Where  the  statute 
creates  a  new  estate,  which  is  given  to  the  widow,  in  derogation 
of  the  rights  not  only  of  creditors,  but  also  of  heirs  and  de\'isees, 
there  the  enjoyment  of  such  estate  includes  the  power  to  transfer, 
lease,  or  sell  it,  and  hence  the  widow's  vendee  or  assignee  takes 
the  same  title  which  she  had, 

§  102.    Abandonment  or  Divorce  affecting  Homestead.  —  Where 


78  THE   LAW  OF  DECEDENTS'   ESTATES.  [§  103 

the  statute  makes  the  homestead  an  estate  in  the  widow,  it 
does  not  seem  that  it  can  be  lost  by  failure  to  occupy  it;  but 
where  the  character  of  exemption  predominates,  the  abandon- 
ment of  a  homestead  by  the  widow  or  minor  children  has  been 
held  to  destroy  their  homestead  right  in  the  premises;  but  how- 
ever proper  the  application  of  such  principle  may  be  during  the 
lifetime  of  the  debtor,  it  is  necessary  to  observe  that  the  tem- 
porary absence  of  his  widow  does  not  constitute  abandonment, 
either  by  her  or  the  minor  children,  and  that  the  tendency  of 
courts  is  to  relax  the  requirement  of  literal  occupation  by  the 
widow,  and  to  dispense  with  it  altogether  in  the  case  of  orphan 
minors. 

It  seems  hardly  necessary  to  mention,  that  neither  a  woman 
not  lawfully  married,  nor  a  wife  who  prior  to  her  husband's 
death  has  been  notoriously  unfaithful  to  him  and  is  not  a  mem 
ber  of  his  family  at  the  time  of  his  death,  or  has  abandoned 
him,  nor  one  who  has  been  divorced,  can  ^claim  a  homestead 
against  the  husband's  real  estate.  A  wife  will  not  lose  her 
homestead  rights  if  she  leaves  her  home  by  reason  of  the  hus- 
band's cruelty;  and  in  an  action  by  her  to  recover  lands  claimed 
as  homestead,  if  the  defendant  allege  that  she  of  her  own  wrong 
had  deserted  her  husband,  she  may  show  that  she  left  him 
because  of  his  cruelty. 

§  103.  Homestead  Rights  of  Minor  Children.  —  Children  dur- 
ing the  period  of  their  legal  infancy  are  the  peculiar  objects  of 
the  protection  intended  by  the  homestead  laws;  while  in  some 
of  the  States  a  widow  is  denied  a  homestead  against  the  claims 
of  heirs,  minor  children  are  entitled  to  such  in  all  the  States  in 
which  homestead  laws  exist,  whether  the  father,  the  mother, 
or  both  parents  have  died.  Thus  it  has  been  held  that,  upon  the 
death  of  a  man  who  had  acquired  a  plantation  and  Hved  upon  it, 
while  his  wife  and  children  lived  in  another  State,  the  home- 
stead right  existed  in  his  children,  although  the  wife  died,  and 
neither  she  nor  the  children  had  ever  lived  upon  the  plantation.^ 

The  distinction  between  the  personal  rights  of  the  widow  as 

such,  or  considered  as  a  constituent  member  of  the  family,  and 

the  authority  vested  in  her  as  the  representative,  or  head,  of  a 

family,  must  be  kept  in  sight  in  ascertaining  whether  her  acts 

1  Johnson  v.  Turner,  29  Ark.  280. 


§§  104,  105]  EXEMPTION  OF  THE   HOMESTEAD.  79 

in  respect  of  the  homestead  are  binding  upon  the  minor  children 
or  not.  Where  the  homestead  rights  are  given  to  the  children, 
or  the  widow  and  children,  or  to  the  family,  it  is  obvious  that 
no  release,  waiver,  sale,  or  abandonment  by  the  widow  can 
deprive  the  children  of  their  rights,  if  there  be  a  practical  neces- 
sity or  occasion  to  assert  them.  Although  the  widow's  interest 
in  the  homestead  may  cease  upon  her  marriage,  yet  the  rights 
of  her  minor  children  are  not  thereby  affected. 

§  104.  Homestead  Rights  of  Widow  and  Children  as  aSected 
by  Encumbrances.  —  The  statutes  of  most  States  provide  that 
the  homestead  exemption  shall  not  apply  against  debts  created 
in  the  purchase  or  erection  of  the  homestead,  or  against  mort- 
gagees under  mortgages  duly  entered  into  by  both  husband 
and  wife.  That  the  homestead  property  is  liable  for  the  pur- 
chase-money for  which  the  owner  became  indebted  in  acquiring 
it  is  not  only  just,  but  ine\'itable,  since  upon  any  other  condition 
its  acquisition  would  become  impossible  in  all  or  most  cases 
in  which  the  purchaser  has  not  sufficient  means  to  pay  the  full 
price  at  once.  It  is  equally  apparent  that  such  homestead 
descends  to  the  surviving  family  subject  to  the  vendor's  hen, 
and  to  the  claims  of  those  who  furnished  money,  materials,  or 
labor  for  its  erection.  And,  generally,  the  homestead  descends 
charged  with  such  debts  of  the  deceased  owner  as  could  have 
been  enforced  against  it  in  his  lifetime,  but  discharged  of  any 
which  could  not  have  been  so  enforced. 

If  the  lands  are  encumbered,  or  cannot  be  partitioned  without 
material  injury,  they  may  be  sold,  and  the  homestead  set  apart 
out  of  the  proceeds. 

§  105.  Homestead  Rights  as  affected  by  Inconsistent  Disposi- 
tion of  the  Estate  by  the  Deceased  Owner.  —  The  right  of  the 
surviving  widow  and  minor  children  to  the  homestead  premises 
is  obviously  paramount  to  that  of  the  deceased  husband  or 
father  to  dispose  of  them;  else  it  would  be  in  his  power  to 
defeat  the  intent  and  purpose  of  these  laws.  Hence  a  testa- 
mentary disposition  of  the  homestead  estate  inconsistent  with 
the  rights  of  the  surviving  members  of  the  family  is  void.  The 
homestead  estate  bears  great  resemblance  to  dower  in  this 
respect,  and  many  principles  governing  the  latter  are  applied 
by  analogy  to  the  former.  But  the  widow  may  be  compelled  to 


80  THE  ];aw  of  decedents'  estates.  [§  106 

elect  between  a  testamentary  provision  and  her  right  to  the 
homestead,  where  the  two  are  clearly  inconsistent. 

It  may  be  stated,  also,  that  in  most  States  the  alienation  of 
homesteads  without  the  consent  of  both  husband  and  wife  is 
held  unavailing  to  prevent  them  from  claiming  the  protection 
of  the  homestead  law. 

§  106.  Homestead  Righcs  as  affected  by  Administration.  —  It 
follows,  from  the  natm-eof  homestead  rights,  that  the  homestead 
can  in  no  view  constitute  assets  in  the  hands  of  the  adminis- 
trator, since  it  vests  in  the  widow  and  children  free  from  the 
husband's  debts.  It  does  not  pass  to  the  beneficiaries  by  the 
laws  of  inheritance  or  devise  and  hence  is  not  derived  from  the 
deceased  so  as  to  make  it  subject  to  inheritance  taxes.  Its 
use  is  reserved  to  the  family  during  the  whole  period  of  admin- 
istration; the  authority  of  the  probate  court  over  it  is  limited 
to  segregating  it  from  that  part  of  the  decedent's  estate  which 
is  subject  to  administration;  when  that  is  done,  its  jurisdiction 
ceases.  Hence  a  sale  of  the  homestead  by  the  administrator 
will  not  divest  the  rights  of  the  widow  and  children,  unless  it 
is  made  to  pay  debts  contracted  before  the  homestead  was 
acquired,  or  any  privileged  debts  to  which  it  may  be  subject; 
and  in  such  case  the  burden  of  proof  that  the  homestead  was 
liable  for  such  debts  is  upon  the  purchaser. 

In  most  States  when  the  right  of  homestead  occupancy  ceases 
by  the  death  of  the  widow  and  the  majority  of  the  children, 
the  estate  passes  to  the  heirs,  or  becomes  subject  to  the  claims 
of  creditors,  as  though  no  intervening  homestead  right  had 
existed.  If  the  intervention  of  the  homestead  has  prevented  a 
creditor  from  recovering  his  debt,  the  usual  rule  against  delay 
in  subjecting  real  estate  to  the  pajTuent  of  debts  does  not  apply. 
In  some  of  the  States  the  land  may  at  once  be  sold,  if  necessary 
to  pay  the  debts,  subject  to  the  right  of  occupation  by  the  widow 
and  children ;  but  in  others  such  sales  are  strongly  objected  to 
and  denied,  because  they  tend  to  sacrifice  the  interests  of  all 
parties  concerned,  since  "but  few  purchasers  not  venturing  on 
a  mere  speculation  in  which  they  supposed  they  had  much  to 
gain  and  little  to  lose,  would  buy  property  subject  to  such  an 
encumbrance."  ^ 

^  Rottenberry  v.  Pipes,  53  Ala.  447. 


§§  107,  108]  EXEMPTION  OF  THE  HOMESTEAD.  81 

§  107.  Procedure  in  Probate  Court  in  setting  out  the  Home- 
stead. —  Where  the  homestead  right  of  the  widow  and  minor 
children  is  secured  to  them  by  the  statute,  it  vests  at  once 
upon  the  death  of  the  owner,  without  prehminary  formahties 
in  any  court.  But  when,  for  any  reason,  it  becomes  necessary 
to  set  apart  the  homestead  from  the  remaining  real  estate  of  the 
decedent,  so  as  to  designate  the  particular  parcel  or  tract  to 
which  the  homestead  right  attaches,  the  proceeding  may  gener- 
ally be  had  in  the  probate  court  having  control  of  the  adminis- 
tration of  the  estate. 

No  particular  formality  is  required  to  give  jurisdiction  to  the 
probate  court,  except  an  inventory  of  the  real  estate,  and  a 
description  of  the  tract  or  parcel  of  land  constituting  the  home- 
stead, and  proof  of  the  insolvency  of  the  estate  where  the  home- 
stead right  depends  on  such  fact;  and  there  should  be  a  petition 
praying  for  the  order.  The  application  may  be  made  at  any 
time  before  a  sale  by  the  administrator,  and  even  after  a  sale 
the  allowance  may  be  made,  if  by  her  acts  the  widow  has  not 
waived  her  right,  or  estopped  herself.  The  proceeding  in  the 
probate  court  in  setting  apart  a  homestead  does  not  affect  the 
title  by  which  the  property  is  held,  but  is  simply  to  withdraw, 
for  the  benefit  of  widow  and  children,  certain  assets  exempt  by 
law  from  the  claim  of  creditors.  Where  the  question  of  the 
homestead  right  depends  upon  the  title  to  the  property,  and 
objection  is  made  in  the  probate  court,  it  must  be  tried  in 
another  forum ;  and  any  person  having  an  adverse  interest  may 
appear  to  defeat  the  application. 

§  108.  The  Rights  and  Burdens  connected  with  Enjoyment  of 
the  Homestead.  —  The  owner  of  a  homestead  interest  in  lands 
has  the  right  to  protect  the  same  against  wrong  or  injury  by 
others  to  the  full  extent  of  his  ownership,  and  is  entitled  to 
be  compensated  in  damages  for  any  violation  of  such  right. 

Together  with  the  rights  of  ownership,  the  law  also  casts 
upon  the  homestead  tenant  the  burden  of  paying  the  taxes 
upon  the  property  and  the  expenses  of  keeping  it  in  repair. 
Hence  the  administrator  will  not  be  allowed  credit  in  his  ad- 
ministration account  for  disbursements  to  pay  taxes  and  repairs 
of  the  homestead  property  occupied  by  the  widow,  although 
it  had  not  been  formally  selected  by  or  assigned  to  her. 


82  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  100 

§  109.  What  Law  controls.  —  The  right  transmitted  to  the 
surviving  members  of  the  family  is  determined  by  the  law  as 
existing  at  the  time  of  the  death  of  the  person  from  whom  it 
descends;  no  subsequent  change  of  the  law  w^ll  aflPect  their 
rights.  But  as  to  creditors,  it  must  be  remembered  that  their 
rights  cannot  be  unpaired  after  the  debt  is  contracted;  so  that 
a  homestead  or  other  exemption  law  is  in  derogation  of  the 
Constitution  of  the  United  States,  in  so  far  as  it  attempts  to 
withdraw  from  the  reach  of  the  creditor  property  which  was 
within  his  reach  before.^ 

1  Gunn  V.  Barry,  15  Wall.  610,  621. 


§§  110,  111]  DOWER.  83 


CHAPTER  XI. 

DOWER. 

§  110.  Dower  in  Realty.  —  Dower  and  curtesy  in  real  estate 
can  properly  be  claimed  as  falling  within  the  scope  of  a  treatise 
dealing  with  the  devolution  of  a  decedent's  property;  but  these 
subjects  also  form  important  chapters  in  every  work  on  real 
estate.  Since  in  a  students'  course  Realty  normally  precedes 
Administration,  and  as  a  treatment  here  of  curtesy  and  dower 
in  realty,  through  condensation,  necessary  in  justice  to  other 
topics,  would  be  only  recapitulation,  it  seems  best  to  omit 
these  subjects,  and  to  call  attention  in  this  connection  only  to 
two  matters  that  seem  especially  pertinent  to  our  general 
topic.^ 

§  111.  Dower  in  Personalty.  —  Dower  is  ordinarily  under- 
stood to  be  applicable  to  real  property  only;  in  some  of  the 
States,  however,  the  statute  provides  for  dower  in  personal 
property,  referring  in  some  instances  to  the  property  assigned 
for  the  temporary  support  of  the  family,  in  analogy  with  the 
ancient  custom  of  supporting  the  widow  out  of  the  estate  during 
the  period  of  quarantine,  and  in  others  to  the  share  allowed 
her  by  law  out  of  the  personalty. 

These  provisions  are  different  from  those  for  homestead  and 
also  from  those  which  give  her  a  regular  place  somewhere 
among  the  kin  to  whom  the  estate  of  the  decedent  goes.  The 
statutes  here  considered  give  the  widow  an  interest  in  the  estate, 
real  and  personal,  of  the  deceased,  varying  with  the  number 
of  children  or  the  absence  of  children,  and  varying  also  as  to 
liability  for  debts  of  the  deceased.  Under  such  laws  the  widow 
takes  her  share  in  the  estate,  in  case  of  intestacy,  with  the  dis- 
tributees. If  there  is  a  will,  containing  provisions  for  the  widow 
in  lieu  of  the  statutory  share  of  the  estate,  a  case  for  election 

^  The  reader  is  referred  to  Chapter  XI  of  Woemer  on  Administration 
for  discussion  of  Dower  and  Curtesy. 


84  THE   LAW   OF  DECEDENTS'   ESTATES.  [§112 

is  presented.  To  apply  the  name  "dower"  to  such  a  right  does 
not  seem  apposite,  and  unfortunate  by  tending  to  confusion  in 
the  meaning  of  a  well-defined  term.  The  subject  is  analogous 
to,  and  has  been  mentioned  in  connection  with,  that  of  pro- 
visional alimony  of  the  family.    The  statutes  vary  greatly. 

§  112.  Election  between  Dower  and  Devise.  —  It  is  the  policy 
of  the  law  to  place  the  widow's  dower  beyond  the  reach  of  the 
husband,  who  can,  at  common  law  as  well  as  under  the  statutes 
of  most  States,  neither  sell,  convey,  nor  otherwise  dispose  of 
his  real  estate  so  as  to  deprive  his  widow  of  dower  therein 
without  her  free  consent.  A  devise  to  such  effect  is  a  fortiori 
void,  unless  she  chooses  to  abide  by  it.  If,  therefore,  the  hus- 
band devise  lands  to  his  wife,  she  will,  under  the  English  doc- 
trine as  held  before  the  change  made  by  statute  in  this  respect, 
take  them  as  a  voluntary  gift  in  addition  to  what  the  law  secures 
to  her  as  dower,  unless  it  appear  plainly,  either  by  express 
words  or  by  manifest  implication,  that  the  devise  was  intended 
to  exclude  dower.  The  statute  referred  to,  enacted  long  after 
the  establishment  of  the  American  government,  is  of  no  force 
proprio  vigore  in  any  of  the  States  of  the  Union ;  and  the  doctrine 
holding  devises  to  be  given  in  addition  to  dower,  if  not  otherwise 
directed  by  the  testator,  is  recognized  in  all  of  them  where  not 
abrogated  or  modified  by  their  own  statutes. 

This  rule,  however,  was  changed  in  England  by  the  statute 
already  mentioned,  which  has  been  incorporated,  with  some 
modifications,  into  the  codes  of  many  States.  According  to  the 
English  statute,  the  devise  to  the  wife  of  any  land,  or  any  estate 
or  interest  therein,  was  construed  in  lieu  of  dower,  unless  a  con- 
trary intention  appeared  from  the  will,  thus  reversing  the  pre- 
sumption arising  from  an  unexplained  devise  for  the  benefit  of 
the  widow.  In  some  of  the  States  the  language  of  the  statute 
is  more  sweeping  than  that  of  the  English  act,  and  seems  to 
be  in  lieu  of  dower  in  every  case  where  the  widow  takes  any- 
thing under  the  will.  Generally,  however,  the  condition  allow- 
ing her  to  enjoy  both  the  devise  and  dower  is,  that  such  shall 
clearly  appear  to  be  the  testator's  intention,  either  expressed 
or  necessarily  implied. 

If  the  devise  or  pro\'ision  in  the  will  be  inconsistent  with  the 
enjojTnent  of  the  right  of  dower,  or  expressly  stated  to  be  in 


§  112]  DOWER.  85 

lieu  of  dower,  or  not  expressed  to  be  in  addition  to  dower  in 
those  States  which  do  not  allow  dower  and  devise  cumulatively 
without  express  direction  or  manifest  intention  of  the  testator, 
the  widow,  though  she  cannot  enjoy  both  her  dower  right  and 
the  provision  made  for  her  by  will,  may  elect  to  take  either 
the  one  or  the  other. 

The  right  of  election  is  guaranteed  to  the  widow  in  the  fullest 
manner,  and  for  the  purpose  of  enabling  her  to  secure  her  own 
best  interest  and  greatest  advantage.  To  this  end  she  is  en- 
titled, not  only  to  have  sufficient  time  to  make  her  choice,  but 
also  to  full  information  of  the  condition  of  the  estate.  No  act 
of  election  will  be  binding  on  the  widow,  unless  done  under  a 
full  knowledge  of  all  the  circumstances,  and  of  her  rights,  and 
with  the  intention  of  electing;  and  if  she  exercise  the  right  pre- 
maturely she  will  not  be  estopped  from  maintaining  an  action, 
within  the  time  allowed  by  law  for  such  election,  to  cancel  the 
election  so  made.  But  if  she  make  her  election  under  a  full 
knowledge  of  the  facts,  she  will  be  bound  thereby,  in  the  ab- 
sence of  fraud  or  unfair  advantage,  even  though  she  did  not 
understand  her  legal  rights.  The  statutes  of  the  several  States 
contain  minute  provisions  as  to  the  time  and  manner  in  which 
the  election  is  to  be  made;  and  as  the  right  is  a  statutory  one, 
the  widow  is  held  to  a  strict  compliance  therewith.  If  she  per- 
mit the  time  to  expire  without  making  her  election,  she  will, 
in  most  States,  be  held  to  a  waiver  of  her  dower. 

In  some  States  an  election  may  be  made  between  dower  and 
a  statutory  share.  For  instance,  in  IMissouri,  the  widow,  if 
she  have  a  child  living  by  her  husband,  may  also  elect  to  take 
in  lieu  of  dower  a  child's  share,  or,  in  case  the  husband  dies 
childless,  one-half,  subject  to  debts,  of  the  real  estate  owned 
by  him  at  his  death;  and  in  maldng  such  election  in  lieu  of 
dower,  the  same  rules  apply,  and  the  election  must  be  made 
strictly  in  the  manner  and  within  the  time  prescribed  by  law, 
or  she  will  take  common-law  dower.  A  corresponding  right 
to  take  against  the  wife's  will  is,  in  many  States,  given  the 
husband. 

The  right  to  elect  is  a  strictly  personal  one,  which  in  the  ab- 
sence of  statutory  authority  can  be  exercised  by  no  one  for 
the  widow,  although  she  die  before  the  time  given  to  make  the 


86  THE   LAW   OF   DECEDENTS'  ESTATES.  [§  112 

election  have  expired,  or  be  insane;  but  provision  is  made  by 
statute,  in  some  instances,  authorizing  the  widow  to  elect  by 
attorney  or  guardian. 

Acts  in  pais  may  determine  an  election,  as  well  as  matter  of 
record:  thus  assignment  of  dower  by  a  court  of  competent 
jurisdiction,  the  filing  of  a  petition  for  dower  within  the  time 
allowed  to  make  the  election,  renouncing  by  deed  the  provision 
made  in  the  will  and  claiming  dower,  contracting  to  relinquish 
her  right,  for  a  valuable  consideration  paid  her,  taking  posses- 
sion of  property  under  a  will  and  exercising  unequivocal  acts 
of  ownership  over  it  for  a  long  time,  and  giving  written  notice 
to  the  executors  of  her  intention,  have  all  been  held  to  consti- 
tute an  election  binding  upon  the  widow.^ 

The  acceptance  by  the  widow  of  the  testamentary  provision 
made  for  her,  in  lieu  of  her  right  of  dower  in  the  testator's 
estate,  gives  her  an  interest  therein  superior  to  that  of  a  legatee : 
having  relinquished  her  dower,  which  is  paramount  to  the  rights 
of  creditors  as  well  as  of  legatees  or  devisees,  she  thereby  became 
a  purchaser  of  the  interest  represented  by  the  devise  or  legacy 
to  her.  She  takes,  not  by  the  bounty  of  the  testator,  but  in 
virtue  of  what  is  tantamount  to  a  contract  with  him,  a  point 
of  importance  in  determining  the  priority  in  payment  of  legacies 
when  the  assets  are  insufficient  for  all,  as  we  shall  hereafter  see 
in  connection  with  the  classification  of  legacies. 

It  may  be  remarked  in  this  connection,  that  the  renunciation 
of  dower  enures  to  the  estate,  and  has  been  held  to  go  to  the 
heir  or  distributee  in  default  of  testamentary  disposition,  so 
that  the  widow  herself  is  not  precluded  from  taking  or  sharing 
therein  as  heiress  or  distributee,  although  she  could  not  take 
as  dowress;  but  it  seems  that  the  declaration  by  the  testator 
that  the  legacy  is  to  be  in  lieu  of  dower,  if  she  accepts  it,  pre- 
vents her  from  taking  anything  else. 

On  the  other  hand,  the  rejection  by  the  widow  of  the  provi- 
sions made  for  her  by  will  and  her  election  to  take  under  the 
law  (either  dower  or  a  statutory  share  provided  for  in  most 
States)  generally  results  in  the  diminution  or  contravention  of 
devises  and  legacies  to  other  parties.  The  rule  in  such  case  is, 
that  the  devise  or  legacy  which  the  widow  rejects  is  to  be  ap- 
1  For  the  cases  see  Woerner  on  Administration,  *  271. 


§  112]  DOWER.  87 

plied  In  compensation  of  those  whom  her  election  disappoints. 
If  the  renounced  share  is  insufficient  to  compensate  the  disap- 
pointed beneficiary,  the  other  devisees  or  legatees,  at  least 
such  as  are  in  the  same  class  with  him  so  far  as  priority  of  pay- 
ment is  concerned,  must  contribute  pro  rata  to  make  up  the 
deficiency. 


THE   LAW   OF  DECEDENTS'   ESTATES.         [§§  113,  114 


CHAPTER  XII. 

PARTNERSHIP   ESTATES. 

§  113.  Results  of  Death  of  a  Partner  at  Common  Law.  —  The 
death  of  any  one  member  of  a  partnership  dissolves  the  firm. 
The  right  of  creditors  of  the  firm  on  the  one  hand,  and  the  re- 
spective rights  between  the  surviving  members  of  the  firm  and 
the  representatives  of  the  deceased  member  on  the  other  hand, 
as  they  stand  at  Common  Law,  first  require  consideration. 

The  key  to  the  situation  Hes  in  the  fact  that  while  the  partner- 
ship lasts,  apart  from  statutory  changes,  the  partners'  title  to 
the  partnership  property  is  joint,  not  joint  and  several,  and  the 
partners'  obligations  to  third  persons,  at  law,  are  similarly 
joint.  Upon  the  death  of  any  partner  the  title  to  firm  assets 
is  therefore  vested  in  the  survivors;  the  representatives  of  the 
deceased  partner  have  no  legal  title  in  any  of  the  assets  of  the 
firm  which  has  been  dissolved  by  the  death  of  such  member. 
Furthermore,  as  a  matter  of  law,  as  distinguished  from  equity, 
the  obligations  of  the  firm  exist  only  as  against  the  surviving 
partners.  Creditors  of  the  firm  can  proceed,  so  far  as  strict 
law  is  concerned,  only  against  the  surviving  partners. 

§  114.  Results  of  Death  of  a  Partner  in  Equity.  —  The  fore- 
going gives  the  relation  between  the  firm  dissolved  by  death 
of  one  of  its  members  and  third  parties.  But  within  the  limits 
of  the  firm  thus  dissolved  the  relation  is  different.  There  the 
surviving  members,  sole  owners  of  assets  and  sole  debtors  as 
far  as  third  persons  are  concerned,  are  trustees  as  regards  the 
interest  of  the  deceased  partner.  It  is  the  duty  of  the  survivors 
toward  the  representatives  of  the  deceased,  to  collect  the  assets, 
discharge  the  debts,  and  account  to  the  representative  of  the 
deceased  for  the  interest  of  the  deceased  in  the  firm.  At  law 
the  representative  of  the  deceased  partner  has  no  right  to 
control  the  actions  of  the  surviving  partners  in  the  realization 
on  assets  of  the  late  firm,  or  in  the  discharge  of  its  obligations. 


§§  115,  116]  PARTNERSHIP  ESTATES.  89 

The  representatives  of  the  deceased  have  merely  a  right  to  an 
accounting  from  the  surviving  members.  It  will  thus  be  seen 
that  the  survivors  virtually  administer  on  the  firm.  But,  apart 
from  statutes,  they  are  not  administrators,  since  they  are  ap- 
pointed by  no  court,  and  can  be  reached  by  no  court  with 
specific  jurisdiction  in  probate  matters. 

The  modifications  of  this  general  legal  view  are  probably 
nowhere  a  connected  system,  and  mostly  a  patchwork  of  changes 
by  decisions  at  law,  by  intervention  of  Courts  of  Equity,  and 
by  statutory  enactments.  It  seems  best  to  take  up  the  concrete 
questions  seriatim. 

§  115.  The  Right  of  Surviving  Partners  to  prefer  Creditors.  — 
As  will  hereafter  more  fully  appear,  the  executor  or  adminis- 
trator of  an  individual  estate  at  common  law  has  the  right  to 
prefer  creditprs  witliin  a  class  as  against  all  others  of  that  class; 
not  however  against  creditors  of  a  superior  class.  At  common 
law  surviving  partners  have  the  same  right  to  pay  off  a  firm 
creditor  in  full,  though  to  the  detriment  of  other  firm  creditors 
of  the  same  class.  Where  the  statutes  have  not  changed  the  law, 
the  rule  seems  to  be  recognized  in  America,  though  this  is  denied 
in  some  of  the  States. 

In  Kansas  ^  it  is  held  that  the  statute  prohibits  a  general 
assignment  for  the  benefit  of  creditors  by  a  surviving  partner; 
and  in  Missouri  ^  it  was  likewise  so  held  after  a  full  discussion 
of  the  authorities,  three  judges  dissenting. 

§  116.  Surviving  Partners  continuing  the  Business.  —  If  sur- 
viving partners  continue  the  trade  or  business  of  the  partnership 
with  the  partnership  stock,  it  is  at  their  own  risk,  and  they  will 
be  liable,  at  the  option  of  the  representatives  of  the  deceased 
partner,  to  account  for  the  profits  made  thereby,  or  to  be 
charged  with  interest  upon  the  deceased  partner's  share  of  the 
surplus,  besides  bearing  all  the  losses;  but,  except  under  par- 
ticular circumstances,  the  party  having  the  choice  cannot  elect 
the  interest  for  one  period  and  the  profits  for  another,  but  must 
elect  to  take  one  or  the  other  for  the  whole  period.  And  if  the 
profits  are  claimed,  bad  debts  must  also  be  deducted;  and  if  the 
continuance  prove  beneficial  to  the  parties,  the  surviving  partner 

^  Shattuck  V.  Chandler,  40  Kan.  516,  520. 
^  State  V.  Withrow,  141  Mo.  69,  81. 


90  THE  LAW  OF  DECEDENTS'  ESTATES.  L§  117 

should  receive  a  reasonable  allowance  for  his  skill  and  industry 
in  conducting  the  business,  although  usually  a  surviving  partner 
is  not  allowed  compensation  for  winding  up  the  partnership 
business,  unless  the  services  rendered  are  extraordinary  and 
perplexing  in  their  nature,  so  as  to  justify  an  exception  to  the 
general  rule,  or  stipulated  in  the  articles  of  copartnership. 
The  whole  transaction  should  be  adopted  or  repudiated.  If, 
however,  the  business  is  carried  on  by  the  survivors  with  the 
assent  of  the  executor  or  administrator  of  the  deceased  partner, 
the  survivors  are  liable  for  the  profits  only,  and  if  a  loss  tran- 
spires, they  are  not  liable  for  either  unless  there  was  negligence 
or  carelessness  in  the  management  of  the  business.  Nor  do  the 
executors,  who  allow  the  share  of  the  capital  of  their  testator 
to  remain  in  and  be  employed  in  the  business  of  the  partnership 
after  his  death,  according  to  the  testator's  instruction  in  the  will 
or  the  partnership  agreement,  thereby  become  liable  as  partners, 
or  incur  any  responsibility.  And  since  the  liability  to  account 
for  profits  after  dissolution  rests  upon  the  exposure  of  the  stock 
of  the  outgoing  partner  to  the  risks  of  the  new  business,  there 
is  no  liability  to  account  when  such  partner  has  withdrawn  as 
much  or  more  than  as  much  of  the  partnership  funds  as  he  is 
entitled  to.  If  the  business  is  carried  on  with  the  consent  of 
some  of  those  who  represent  the  interest  of  the  deceased  partner, 
and  against  the  consent  of  others,  the  earnings  are  to  be  divided 
according  to  the  capital  to  which  each  was  entitled,  after  de- 
ducting such  share  of  them  as  is  attributable  to  the  skill  and 
services  of  the  surviving  partner,  if  there  are  no  circumstances 
rendering  such  a  rule  unjust  or  inapplicable.^ 

No  notice  of  the  dissolution  of  the  firm  by  the  death  of  one 
of  its  members  is  necessary  to  discharge  the  estate  of  the  de- 
cedent from  liability  for  any  subsequent  transaction,  except, 
perhaps,  where  the  surviving  partners,  or  one  of  them,  are 
executors  of  the  deceased  partner,  and  the  business  is  continued 
under  the  original  articles  of  copartnership. 

§  117.    Continuing  the  Interest  of  Deceased  Partner  in  Business. 

—  Agreements  among  living  partners  looking  to  a  continuance 

of  the  business  after  a  partner's  death  are,  however,  to  be  looked 

upon  as  bargains  for  the  creation  of  a  new  partnership  when 

*  See  Woemer  on  Administration,  §  125  and  notes. 


§  117]  PARTNERSHIP  ESTATES.  91 

the  old  one  ceases  to  exist,  since  the  partner  who  has  died  cannot 
by  possibility  continue  a  member  of  the  firm,  and  though  his 
executors  or  children  become  members,  yet  it  cannot  be  the 
same  firm  as  that  of  which  he  was  a  member.  In  the  absence 
of  an  agreement  of  all  the  partners,  the  executors  of  a  deceased 
partner  have  no  right  to  become  partners  wnth  the  survivors  of 
the  firm,  nor  in  any  manner  to  interfere  with  the  partnership 
business,  save  to  represent  the  deceased  for  all  purposes  of 
accounting;  but  a  testator  may  by  his  will  so  direct  the  con- 
tinuance of  the  partnership  after  his  death  that  the  whole  estate 
shall  be  liable  for  the  post-mortuary  debts,  or  only  to  the  amount 
of  his  actual  interest  in  the  partnership  debts  at  his  decease. 
It  has  been  held  in  England,  and  in  some  instances  in  the  United 
States,  that  a  court  of  equity,  or  even  probate,  may  authorize 
the  administrator  of  a  deceased  partner  to  continue  the  partner- 
ship in  behalf  of  an  infant  heir;  but  this  seems  a  dangerous  power, 
perilous  alike  to  the  administrator,  who  is  personally  Hable  for 
debts  incurred  in  the  prosecution  of  the  business,  and  the  bene- 
ficiaries of  the  estate,  whose  interests  may  be  jeoparded  by  the 
vicissitudes  of  trade,  although  the  administrator  may  exercise 
the  utmost  vigilance  and  caution.  The  extent  of  the  liability 
of  a  deceased  partner's  estate  for  debts  contracted  after  his 
death  on  behalf  of  the  partnership  will  in  all  cases  depend  upon 
the  terms  of  the  agreement  in  virtue  of  which  it  is  continued; 
and  while  it  is  clear  that,  on  general  principles,  no  limitation 
of  the  extent  of  his  assets  to  be  employed  in  the  partnership 
business  can  affect  the  rights  of  creditors  existing  at  the  time 
of  his  death,  it  is  equally  clear  that  only  the  most  unambiguous 
language,  showing  the  positive  intention  of  the  testator  to 
render  his  general  assets  liable  for  debts  contracted  after  his 
death,  can  justify  the  extension  of  the  liability  of  his  estate 
beyond  the  actual  fund  employed  in  the  partnership  at  the  time 
of  his  death. 

The  continuation  of  the  partnership  after  the  testator's 
death,  in  pursuance  of  the  directions  in  the  will,  has  the  effect 
of  creating  a  new  partnership,  of  which  the  sur\dvors  and  exec- 
utors of  the  deceased  partner  are  the  members;  and  creditors 
of  this  new  firm  have  no  claim  upon  the  general  assets  of  the 
testator,  but  only  upon  such  assets  as  are  directed  by  the  will 


92  THE   LAW  OF  DECEDENTS'  ESTATES.  [§  118 

to  be  therein  employed.  And  in  this  new  firm  the  executor 
pledges  his  own  responsibility  to  the  creditors,  although  he 
carries  on  the  business  not  for  his  own  benefit,  but  only  for  the 
benefit  of  children  or  legatees  of  the  testator.  Hence  it  must  be 
optional  with  the  executor,  even  where  an  apparent  duty  is 
imposed  by  the  will,  to  refuse  to  connect  himself  with  the 
business,  and  with  still  greater  reason  in  the  case  of  an 
administrator. 

§  118.  Rights  of  Partnership  Creditors.  —  As  above  shown, 
the  legal  remedy  of  firm  creditors  at  common  law  is  against  the 
surviving  partners.  Their  judgments  can  be  realized  out  of 
firm  assets,  and  also  out  of  the  personal  assets  of  the  sur- 
viving partners.  At  common  law  there  is  no  remedy  against 
the  estate  of  the  deceased  partner. 

But  equity  will  give  the  firm  creditor  a  remedy  against  the 
estate  of  the  deceased  partner  in  case  of  insolvency  of  the  sur- 
viving partners.  Whether  the  firm  creditor  can  proceed  against 
the  deceased  without  having  actual  judgment  against  the  sur- 
vivors and  a  return  of  nulla  bona  thereon,  is  variously  held. 
In  the  absence  of  a  statute  making  the  debt  joint  and  several,  it 
is  but  one  phase  of  the  larger  question  whether  a  creditor  can 
enforce  an  equitable  remedy  before  obtaining  a  judgment  at 
law. 

As  above  shown,  the  absence  of  a  legal  remedy  against  the 
estate  of  the  deceased  arises  from  the  fact  that  the  firm  obliga- 
tions at  common  law  are  joint,  not  joint  and  several.  But  the 
statutes  of  most  States  have  made  the  firm  obligations  joint 
and  several.  Where  this  is  the  case,  the  firm  creditor  has  a 
claim  at  law  against  the  estate  of  the  deceased  partner. 

But  in  such  cases  it  must  be  remembered  that  whenever  assets 
are  administered  on  equitable  principles  (and  this  is  generally 
true  of  probate  administration),  firm  assets  are  primarily  ap- 
plicable to  the  payment  of  firm  debts,  and  only  the  surplus,  if 
any,  after  full  discharge  of  firm  debts,  can  be  reached  by  cred- 
itors of  individual  partners.  Conversely,  the  individual  assets 
of  a  partner  are  primarily  used  for  the  payment  of  his  personal 
debts;  firm  creditors  can  claim  only  after  the  personal  creditors 
have  been  paid  in  full.  So,  in  those  States  in  which  the  part- 
nership creditor  can  prove  up  directly  against  the  estate  of  the 


§§  119,  120]  PARTNERSHIP   ESTATES.  93 

deceased  partner,  the  general  rule  is  that  payments  will  be 
made  on  such  claims  only  after  the  personal  debts  of  the  de- 
ceased are  paid. 

§  119.  Rights  of  Representatives  of  the  Deceased  Partner.  — 
Since  the  survivors  stand  toward  the  representatives  of  the 
deceased  in  the  position  of  trustee  to  cestuis  que  trustent,  they 
are  subject  to  equitable  control  in  case  of  abuse  of  trust  only, 
on  the  principles  controlling  in  the  case  of  other  trustees  with 
full  discretion  in  the  management  of  the  trust.  This  includes 
the  right  of  the  executor  or  administrator  of  the  deceased  to 
demand  an  accounting,  and  to  enforce  that  right  in  equity. 

The  separate  creditors,  legatees,  and  next  of  kin  of  the 
deceased  partner  have  no  locus  standi  against  the  surviving 
partner,  but  only  against  the  executors  or  administrators  of 
the  deceased,  unless  there  be  collusion  between  these  persons, 
or  circumstances  exist  which  prevent  the  representatives  them- 
selves from  obtaining  a  decree  for  an  accounting.  If  the 
administrator  fails  to  compel  a  speedy  accounting  by  the 
surviving  partner,  he  is  himself  guilty  of  laches. 

It  appears  to  be  generally  Jield  that  partnership  assets  must 
first  be  applied  to  the  payment  of  partnership  debts  and  the 
advances  of  either  partner,  before  the  other  partner  or  any 
one  through  him  has  any  claim  on  them.  This  principle  would, 
of  course,  exclude  the  right  of  the  widow  to  an  allowance  out 
of  the  partnership  assets,  as  well  as  any  other  person  claiming 
as  his  legal  representative. 

§  120.  Distribution  of  Partnership  Effects.  —  Upon  the  pay- 
ment of  all  the  partnership  debts  and  expenses  of  liquidation, 
a  specific  division  of  all  the  remaining  assets  may  be  made 
between  the  surviving  partners  and  the  personal  representa- 
tives of  the  deceased  partner,  if  they  so  agree.  But  each  party 
may,  in  the  absence  of  such  an  agreement,  and  where  the 
partnership  contract  stipulates  no  division  in  a  different  man- 
ner, insist  on  a  sale  of  the  joint  stock;  and  where  a  court  of 
equity  winds  up  the  concerns  of  a  partnership  it  is  usually  done 
by  a  sale  of  the  property,  whether  real  or  personal,  and  a  con- 
version of  it  into  money;  but  there  may  be  cases  in  which  the 
peculiar  circumstances  would  make  a  sale  injurious,  and  where 
the  true  interest  of  all  parties  may  be  better  preserved  and  pro- 


94  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  121 

tected  without  it.  It  seems  to  be  understood  that  a  sale  at  public 
auction  is  most  favored,  because  at  such  a  sale  all  interested 
parties  may  be  present,  and  bid  to  prevent  a  sacrifice  of  the 
stock;  but  there  is  no  conclusive  rule  upon  the  subject,  and  the 
circumstances  of  each  case  must  suggest  the  best  course  to  be 
adopted.  The  representatives  of  the  deceased  partner  may  sell 
the  interest  of  the  latter  to  third  persons,  or  to  the  survivor, 
if  the  sale  is  fair  and  honest;  but  not  where  the  surviving  partner 
is  also  executor  or  administrator  of  the  deceased  partner. 
The  surviving  partner  cannot  shield  himself  from  responsi- 
bility for  the  true  value  of  partnership  property  bought  secretly 
and  indirectly  by  himself,  by  showing  that  the  sale  was  under 
judicial  authority;  nor  where  bidders  were  deterred  for  his  benefit 
from  bidding,  although  in  consequence  of  deceit  he  did  not 
obtain  the  property.  He  has  no  right,  in  the  absence  of  pro- 
vision in  the  partnership  articles,  to  appropriate  the  firm  assets, 
although  willing  to  pay  the  value  thereof.  And  he  is  chargeable 
with  any  increase  in  value  between  the  appraised  value  and 
actual  value.  But  the  court  may,  upon  a  proper  showing,  per- 
mit the  surviving  partner  to  retain  the  assets  upon  payment  of 
their  full  value.^ 

§  121.  Good  Will  of  Partnership.  — The  good  will  of  a  firm 
dissolved  by  the  death  of  one  of  its  members  has  often  a  mar- 
ketable value,  and  in  such  case  it  is  liable  to  be  sold  for  the 
benefit  of  all  the  partners,  like  any  other  property  of  the  firm. 
In  such  case  it  must  be  taken  into  consideration  in  the  valua- 
tion of  the  stock,  and  the  proceeds  of  its  sale  become  assets 
for  the  payment  of  debts  or  distribution  between  the  deceased 
and  surviving  partners.  But  it  is  not  always  either  valuable  or 
salable.  It  is  described  as  the  sum  which  a  person  would  be 
willing  to  give  for  the  chance  of  being  able  to  keep  the  trade 
established  at  a  particular  place,  or  rather  it  is  the  price  to  be 
paid  for  the  advantage  of  carrying  on  business  either  on  the 
premises  or  with  the  stock  of  the  old  firm,  or  connected  there- 
with by  name,  or  in  some  manner  attracting  the  customers  of 
the  old  to  the  new  business.  Upon  the  sale  of  an  established 
business,  its  good  will  has  obviously  a  marketable  value;  but 

*  Woerner  on  Administration  (first  paragraph),  §  127,  and  authorities 
there  cited. 


§  122]  PARTNERSHIP  ESTATES.  95 

this  depends  largely,  if  not  entirely,  on  the  absence  of  compe- 
tition on  the  part  of  those  by  whom  the  business  has  been  pre- 
viously carried  on.  Hence,  since  a  sm-viving  partner  is  under 
no  obligation  either  to  retire  from  business  merely  because  the 
partnership  is  dissolved,  or  to  carry  on  the  old  business  so  as  to 
preserve  its  good  will  until  the  final  winding  up  of  the  partner- 
ship affairs,  its  market  value  is  often  destroyed  or  inconsider- 
able. So  too  the  sale  of  an  establishment  in  toto  will  carry  with 
it  the  good  will  to  the  purchaser;  and  if  a  lease,  being  the  prop- 
erty of  a  partnership,  be  sold,  the  good  will  passes  with  it  to 
the  person  purchasing.  In  such  cases  the  good  will  is  included 
in  or  constitutes  a  part  of  the  value  of  the  thing  sold,  and  it 
follows  that  it  can  be  valued  or  sold  only  in  connection  with 
such  property;  the  stock  or  business  sold  is  enhanced  in  value 
by  the  estimated  value  of  such  good  will.  Where  the  good 
will  is  the  subject  of  a  special  contract,  or  arises  out  of  it,  it 
assumes  a  more  tangible  shape,  and  may  be  valued  and  assigned 
with  the  rest  of  the  effects;  it  is  described  by  Collyer  as  "an 
advantage  arising  from  the  fact  of  sole  ownership  to  the  exclu- 
sion of  other  persons."  Good  will  of  this  kind,  being  a  valuable 
addition  to  a  trade,  cannot  be  implied  from  the  general  words 
"stock,  effects,  &c.,"  but  must  be  created  by  some  appropriate 
words;  and  it  has  been  held  that  the  naked  sale  of  the  good  will 
of  a  business  does  not  transfer  a  right  to  the  use  of  the  vendor's 
name  of  trade.  Nor  can  a  surviving  partner,  without  the  con- 
sent of  the  representatives  of  the  deceased  partner,  use  the 
firm  name  or  the  name  of  the  deceased  partner  in  continuing 
the  business. 

§  122.  The  Real  Estate  of  the  Partnership.  —  It  is  now  well 
recognized,  that  as  between  copartners  there  is  in  reality  no 
difference  whether  the  partnership  property  held  for  the  pur- 
poses of  trade  or  business  consists  of  personal  or  real  estate, 
or  of  both,  so  far  as  their  ultimate  rights  and  interests  are  con- 
cerned. However  the  title  may  stand  at  law,  real  estate  be- 
longing to  a  partnership  will  in  equity  be  treated  like  its  personal 
funds,  disposable  and  distributable  accordingly;  and  the  parties 
in  whose  names  it  stands,  as  owners  of  the  legal  title,  will  be 
held  to  be  trustees  of  the  partnership,  accountable  accordingly. 
Hence  in  equity,  in  case  of  the  death  of  one  partner,  there  is 


98  THE  LAW  OF  DECEDENTS'  ESTATES.  [§  122 

no  survivorship  in  the  real  estate  of  the  partnership,  but  his 
share  will  go,  after  payment  of  the  partnership  debts,  to  his 
proper  representatives;  but  all  real  estate  purchased  with 
partnership  funds  for  the  use  of  the  firm,  and  employed  in  the 
partnership  business,  is  in  equity  regarded  as  assets  of  the 
partnership,  and  will  be  applied  to  the  liquidation  of  partner- 
ship debts  in  preference  to  the  debts  of  individual  members  of 
the  firm.  The  dower  interest  of  the  widow  of  a  deceased  partner 
depends  upon  the  contingency  whether  any  portion  of  the  pro- 
ceeds of  sale  of  partnership  real  estate  remains  to  the  share  of 
her  deceased  husband  after  the  payment  of  all  the  partnership 
debts,  and  advances  made  by  the  other  partners;  hence  she 
has  no  claim  to  dower  in  the  lands  sold  or  mortgaged  by  the 
firm,  although  she  did  not  join  in  the  sale,  but  may  have  a  dower 
interest  in  the  balance  of  the  purchase-money  so  remaining, 
which  is  then  treated  as  real  estate.  So  each  partner  has  an 
equitable  interest  in  that  portion  of  the  legal  estate  held  by 
the  other,  until  all  the  debts  obligatory  on  the  firm,  including 
advances  by  any  of  the  partners  to  the  firm,  are  paid,  and  the 
rights  of  the  deceased  partner's  widow,  legal  representatives, 
heirs,  and  creditors  are  postponed  to  such  payment.  But  such 
partnership  real  estate  as  may  not  be  required  for  the  payment 
of  partnership  debts  or  the  adjustment  of  balances  between 
the  partners  is,  in  the  settlement  of  the  estate  of  a  deceased 
partner,  generally,  —  at  least  in  cases  where  the  partners  have 
not  by  either  an  express  or  implied  agreement  indicated  an 
intention  to  convert  the  land  into  personal  estate,  —  treated 
as  realty ;  although  in  some  cases,  both  in  England  and  America, 
the  character  of  personalty,  once  attaching  to  such  property  by 
reason  of  having  been  purchased  with  partnership  funds  or 
used  for  partnership  purposes,  is  held  to  continue  until  final 
distribution.  Wliether  an  agreement  to  buy  and  sell  lands  and 
share  in  the  profits  of  the  sale  converts  the  land  absolutely  into 
personalty,  has  been  held  both  ways.  The  current  of  authori- 
ties seems  to  regard  lands  bought  by  a  firm  engaged  in  the  busi- 
ness of  speculating  in  real  estate  as  personal  property  for  all 
partnership  purposes;  but  after  winding  up  the  partnership  and 
fully  settling  its  affairs,  the  realty  then  remaining  on  hand 
resumes  its  legal  characteristics. 


§  123]  PARTNERSHIP   ESTATES.  97 

§  123.  History  of  the  Missouri  Statute  as  Typical  of  Modern 
Partnership  Administration.  —  Under  the  system  discussed  above, 
probate  courts  have  nothing  to  do  with  the  settlement  of  part- 
nership estates.  Some  States  have  statutes  looking  toward 
subjecting  the  settlement  of  partnerships  dissolved  by  death 
of  a  member  to  a  greater  or  less  extent  to  the  control  of  the 
probate  court. 

The  ]\Iissouri  statute  may  be  studied  with  profit  as  typical 
of  the  development  from  the  common  law  to  the  modern  con- 
ception. It  is  very  full,  and  gives  greater  powers  over  surviv- 
ing partners  to  the  probate  court  than  is  given  to  it  in  any  other 
State.  Its  history  furnishes  a  striking  instance  of  the  increasing 
confidence  in  the  efficiency  of  probate  courts,  and  of  the  ten- 
dency of  the  legislation  in  the  American  States  to  enlarge  the 
scope  of  their  powers  and  jurisdiction,  and  for  this  reason  the 
historical  evolution  of  the  Missouri  law  is  traced  in  the  sub- 
joined note.^ 

'  The  first  legislative  enactment  subjecting  sunaving  partners  to  the 
jurisdiction  of  probate  courts  is  in  Rev.  Stat.  1845,  incorporating  the  sub- 
stance of  thoi  Maine  statute.  In  1849  the  probate  court  was  authorized 
to  order  a  surviving  partner,  upon  petition  of  two-thirds  in  interest  of 
the  creditors,  and  proof  that  injustice  would  not  be  done  to  other  parties, 
to  adjust,  close,  and  settle  the  business  of  the  firm  without  such  bond  or 
security;  but  it  was  specially  enacted  that  such  surviving  partner  shall  in 
other  respects  be  subject  to  the  control  and  superintendence  of  the  court. 
In  the  Revised  Statutes  of  1855,  the  right  to  give  the  bond,  and  to  ad- 
minister the  partnership  effects,  is  limited  to  surviving  partners  residing 
in  the  State  and  such  administration  is  directed  to  be  had  in  the  county 
in  which  the  partnership  business  was  conducted.  Authority  is  also  given 
to  the  surviving  partner  to  pay  partnership  debts,  without  requiring  them 
to  be  exliibited  for  allowance  in  the  probate  court;  but  where  the  admin- 
istrator of  the  deceased  partner  administers  the  partnership  estate,  and 
also  where  the  surviving  partner  refuses  to  pay  demands  against  the  partner- 
ship, provision  is  made  for  the  allowance  and  classification  of  such  demands. 
Provision  is  made  for  the  appearance  of  surviving  partners,  when  a  claim 
is  presented  against  the  partnership  estate  administered  by  the  admin- 
istrator of  the  deceased  partner,  and  authority  given  them  to  defend 
against  such  claim,  and  appeal  from  the  decision  of  the  probate  court.  It 
is  also  provided,  that  the  administration  of  the  partnership  effects  shall 
in  all  things  conform  to  administrations  in  ordinary  cases,  and  that  the 
person  administering,  and  his  sureties,  shall  perform  the  same  duties,  be 
governed  by  the  same  limitations  and  restrictions,  and  be  subject  to  the 
same  penalties,  as  other  administrators  and  their  sureties.  The  General 
Statutes  of  1865  introduced  no  change;  but  in  the  Revised  Statutes  of 
1879  the  language  subjecting  surviving  partners  to  the  jurisdiction  of  the 


98  THE  LAW  OF  DECEDENTS'  ESTATES.  [§  123 

probate  court  is  made  peremptory  and  comprehensive:  "The  adminis- 
tration upon  partnership  effects,  whether  by  the  surviving  partner,  or 
executor  or  administrator  of  the  deceased  partner,  shall  in  all  respects 
conform  to  administrations  in  ordinary  cases,  except  as  herein  otherwise 
provided,  and  the  person  administering  upon  partnership  effects,  and  his 
sureties  on  his  official  bond,  shall  perform  the  same  functions  and  duties, 
be  governed  by  the  same  limitations,  restrictions,  and  provisions,  and  be 
subject  to  the  same  penalties,  liabihties,  and  actions,  as  other  adminis- 
trators and  their  sureties."  In  1883  the  legislature  introduced  a  further 
provision  requiring  the  surviving  partner  administering  to  pay  partner- 
ship debts  pro  rata,  according  to  their  respective  classes,  securing  to  all 
the  creditors  an  equal  participation  in  the  assets  of  insolvent  partnerships. 

In  1885  the  legislature  made  provision  for  compensation  to  surviving 
partners  administering  the  partnership  effects. 

In  the  Revision  of  1889  (which  remains  unchanged  in  all  respects  in 
the  Revisions  of  1899  and  1909),  the  division  of  claims  against  partner- 
ship estates  into  two  classes,  according  as  they  are  presented  for  allowance 
within  the  first  or  second  year,  is  repealed,  and  creditors  are  now  required 
to  present  their  claims  for  allowance  within  the  first  year  of  the  admin- 
istration, or  be  forever  barred  against  the  partnership  effects  under  ad- 
ministration. 

The  history  of  this  statute,  together  with  the  interpretations  it  received 
from  the  judiciary  in  the  various  phases  of  its  development,  strikingly 
illustrates,  also,  the  difficulty  attending  the  introduction  of  principles 
which  require,  on  the  part  of  judges  and  lawyers,  a  departure  from  the 
famihar,  well-trodden  paths  of  the  common  law.  The  interesting  story 
of  that  struggle  is  given  in  Woemer  on  Administration,  §  129. 


§  124]  ESCHEATS.  99 


CHAPTER  XIII. 

ESCHEATS. 

§  124.  Devolution  of  Property  in  Default  of  Heirs.  —  Property 
of  deceased  persons  necessarily  vests  in  the  State  if  no  one  is 
competent  to  take  it  as  heir  or  testamentary  donee.  "  It  seems 
to  be  the  universal  rule  of  civilized  society,  that  when  the  de- 
ceased owner  has  left  no  heirs  it  should  vest  in  the  public  and 
be  at  the  disposal  of  the  government."  ^  Such  property  is  said 
to  escheat,  —  a  term  applied  in  the  common  law  to  the  reversion 
of  an  estate  to  the  lord  from  whom  it  was  held,  either  propter 
defectum  sanguinis,  i.  e.,  on  account  of  the  failure  of  heirs  of 
the  grantee,  or  propter  delictum  tenentis,  i.  e.,  on  account  of  the 
felony  or  attainder  of  the  tenant.  Of  course,  there  can  be  no 
escheat  in  this  country  on  the  latter  ground  (nor  in  England, 
since  corruption  of  blood  and  forfeitures  and  escheats  are  done 
away  with  by  statute) ;  hence,  in  the  United  States,  escheat  sig- 
nifies a  reversion  of  property  to  the  State  in  consequence  of  a 
want  of  any  individual  competent  to  inherit.  Our  present  law 
on  the  subject  is  developed  from  the  law  of  escheats:  it  has  no 
connection  with  forfeitures.  Within  the  States  of  the  American 
Union  escheats  for  defect  of  heirs  are  to  the  State  in  which  the 
property  is  situated  and  not  to  the  United  States.^ 

1  Bouv.  Law  Diet.:  "Escheat." 

2  In  this  connection  it  is  appropriate  to  refer  to  an  interesting  case 
recently  decided  by  the  federal  Circuit  Court  of  Appeals,  first  circuit. 
Personal  property  was  discovered  on  the  body  of  an  unknown  decedent 
found  floating  on  the  high  seas,  out  of  the  jurisdiction  of  any  particular 
State  and  of  the  United  States,  was  brought  to  Massachusetts  by  the 
salvors  and  held  in  the  custody  of  a  federal  district  court  for  disposition 
after  being  libelled  for  salvage;  the  fund  was  claimed  by  the  pubUc  ad- 
ministrator administering  the  estate  under  the  State  law,  and  by  the 
United  States  as  having  a  superior  right  to  the  fund;  the  court  held  that 
although  it  was  within  the  constitutional  powers  of  the  Congress  to  legis- 
late respecting  the  control  of  funds  such  as  that  in  question,  yet  in  the 
absence  of  such  legislation  the  United  States  could  make  no  claim  thereto, 
and  that  "the  State  may  act  until  and  except  so  far  as  the  United  States 


100  THE  LAW  OF  DECEDENTS'   ESTATES.         [§§  125,  126 

§  125.  Escheat  at  Common  Law.  —  In  its  strict  common-law 
sense  escheat  applies  only  to  realty.  As  pointed  out  heretofore 
in  discussing  alienage/  whenever  the  State  asserts  its  right  of 
escheat  against  an  alien  who  claims  by  purchase  as  distinguished 
from  descent,  there  is  necessity  for  an  "inquest  of  office,"  or 
"office  found,"  as  the  proceeding  to  ascertain  the  sovereign's 
title  is  called.  But  "whenever  the  owner  dies  intestate  without 
leaving  any  inheritable  blood,  or  if  the  relations  whom  he  leaves 
are  aliens,  there  is  a  failure  of  competent  heirs,  and  the  lands 
vest  immediately  in  the  State  by  operation  of  law.  No  inquest 
of  office  is  requisite  in  such  cases."  ^  But  there  will  be  no  escheat 
so  long  as  there  are  heirs  capable  of  inheriting:  if  some  of  the 
next  of  kin  be  incapable  by  reason  of  alienage  to  take,  the  in- 
heritance descends  to  such  as  are  competent,  as  if  such  aliens 
had  never  existed. 

§  126.  Escheats  under  the  Statutes  of  the  Several  States.  — 
Escheat  in  the  feudal  sense  has  never  existed  in  America,  at 
least  not  since  the  Revolution,  but  has  here  become  a  falling 
of  the  estate  into  the  general  property  of  the  State,  either 
because  the  tenant  is  an  alien,  or  because  he  has  died  intestate 
without  lawful  heirs  to  take  his  estate  by  succession.  This  prin- 
ciple includes  personal  property  as  well  as  real,  and  is  so  treated 
in  the  statutes  governing  the  subject  in  the  several  States. 

Under  the  old  common  law  the  interest  of  the  cestui  que 
trust  did  not  escheat,  which  was  one  of  the  inducements  leading 
to  the  use  of  trusts,  but  the  American  doctrine  also  includes 

intervene";  that  the  common  law  of  England,  giving  the  Crown  the  right 
to  lost  property  was  not  appHcable  to  the  case,  it  being  "enough  to  say 
that  whatever  was  the  title  of  the  king  at  common  law,  it  was  based  on 
royal  prerogative,  was  appurtenant  to  the  crov\Ti  and  was,  for  the  most 
part,  classified  among  the  royal  revenues";  and  that  "while  there  can  be 
no  question  that  the  sovereign  people  in  Anglo-Saxon  America,  whether 
the  various  States  or  the  United  States,  did,  in  some  way,  succeed  to  all 
the  rights  of  the  English  King  and  of  the  English  people,  yet,  imtil  some 
recognized  line  of  procedure,  or  some  action  of  Congress  iatervenes,  it 
is  not  within  the  province  of  the  courts  to  determine  that  the  treasury  of 
the  United  States  represents  any  particular  royal  prerogative."  And  it 
was  held  that  the  estate  be  administered  by  the  Massachusetts  laws, 
particularly  since  provision  was  thereby  made  for  the  claiming  of  the 
funds  by  the  possible  heirs  within  a  number  of  years:  United  States  v. 
Tjmdale,  116  Fed.  R.  (C.  C.  A.)  820. 

1  Ante,  §  12. 

2  4  Kent  *  424;  Farrar  v.  Dean,  24  Mo.  16. 


§§  127-129]  ,  ESCHEATS.  101 

property  held  in  trust,  whether  by  express  enactment  of  the 
statute,  or  as  a  necessary  consequence  of  the  right  of  the 
State  as  ultimus  hoBres. 

§  127.  Need  of  Inquest  of  Office  under  Statutes.  —  The  doc- 
trine of  the  common  law  just  stated,  that  "inquest  of  office"  is 
necessary  only  against  an  alien  who  takes  by  purchase,  holds 
good  in  the  United  States,  except  where  such  proceeding  is 
directed  by  express  statute.  The  statutes  of  a  few  states  re- 
quire such  a  proceeding  both  as  to  realty  and  personalty;  a 
larger  number  limit  the  requirement  to  realty,  leaving  the  dis- 
position of  personalty  of  such  as  die  without  ascertainable  dis- 
tributees to  the  jiu-isdiction  of  the  Probate  Court. 

§  128.  Aa  Official  as  Representative  of  the  State.  —  In  most 
of  the  States  it  is  made  the  duty  of  some  officer,  specially  vested 
with  authority  for  such  purpose,  to  investigate  and  ascertain 
whether  property,  real  or  personal,  have  escheated,  and  to  take 
all  needful  steps  in  securing  such  to  the  State.  With  rare 
exceptions,  the  proceeds  of  escheated  property  are  dedicated 
in  the  several  States  to  the  general  school  fund,  or  otherwise 
appropriated  for  the  purposes  of  public  instruction.  It  is 
held,  that  the  beneficiaries  of  these  donations  acquire  a  vested 
right  to  the  property  escheated,  as  soon  as  the  facts  which  give 
rise  to  the  escheat  exist;  hence  a  law  changing  the  destination 
of  escheats  can  operate  prospectively  only.  The  law  in  force 
at  the  time  of  the  death  of  one  who  leaves  only  alien  heirs 
determines  the  question  of  escheat;  and  a  treaty  securing  to 
aliens  competent  to  inherit  real  estate  the  right  to  such  inherit- 
ance, confers  no  right  upon  an  alien  who  was,  at  the  time  of  the 
intestate's  death,  incompetent,  though  subsequently  aliens 
were  by  statute  enabled  to  hold  real  estate  by  inheritance. 

§  129.  Escheated  Estate  Subject  to  Trusts. —  Chancellor  Kent, 
in  his  Commentaries,  mentions  with  disapprobation  "a  very 
inequitable  rule  of  the  common  law,  that  if  the  king  took 
lands  by  escheat,  he  was  not  subject  to  the  trusts  to  which 
the  escheated  lands  were  previously  liable";  and  says,  that 
"the  opinion  in  England  is  understood  to  be  that,  upon  the 
escheat  of  the  legal  estate,  the  lord  will  hold  the  escheat  free 
from  the  claims  of  the  cestui  qui  trust" ;^  and  he  points  out 
1  4  Kent,  *  425-426. 


102  THE  LAW  OF  DECEDENTS'  ESTATES.         [§§  130,  131 

certain  English  statutes  as  calculated  to  check  the  operation 
of  so  unreasonable  a  principle.  In  America  the  principle  is 
universally  recognized,  that,  where  property  escheats,  the 
State  takes  precisely  the  title  which  the  party  dying  had,  and 
no  other.  It  is  taken  in  the  condition  and  to  the  extent  in 
which  he  held  it.  This  is  the  necessary  result  of  the  prhiciple 
that  escheat  in  America  means  only  the  substitution  of  the 
State  to  the  rights  of  an  owner  M^ho  is  incompetent  to  hold  the 
title,  or  as  heir  to  an  estate  in  case  there  be  no  other  heir  com- 
petent to  take  it. 

§  130.  Subsequent  Recovery  by  Heir  from  the  State.  —  Most 
of  the  States  make  liberal  provisions  to  enable  heirs  to  recover 
property  even  after  judgment  of  escheat,  if  they  were  not  parties 
to  the  inquisition,  and  had  no  notice  of  the  proceeding.  Where 
money  and  the  proceeds  of  the  sale  of  personal  or  real  property 
have  been  paid  into  the  State  treasury,  the  relief  consists  in  a 
provision  authorizing  the  pajyixient  of  the  net  amount  of  the 
escheat  to  the  claimants  who  within  a  certain  time  make  suffi- 
cient proof  of  their  title. 

§  131.  Administration  of  Escheated  Estates.  —  It  is  provided 
in  the  statutes  of  some  of  the  States,  that  where  a  person 
dies  leaving  no  competent  heirs,  there  shall  nevertheless  be 
administration  of  his  estate  in  the  usual  manner.  It  is  obvious 
that  in  these  States  the  object  of  the  law  is  fully  accomplished 
by  placing  the  State  in  the  category  of  an  heir,  represented  in 
all  matters  requiring  representation,  in  court  or  otherwise, 
by  the  official  escheator  or  person  designated  to  guard  the  in- 
terest of  the  State  in  such  proceeding;  and  the  rights  of  credi- 
tors or  other  claimants  against  such  estate  are  adjudicated 
precisely  as  if  there  were  no  question  of  escheat.  In  other 
States  the  necessity  of  administration  in  the  usual  form  results 
from  the  absence  of  legislation  directing  the  management  of 
escheated  estates. 


§  132]     INSTRUMENTALITIES  EFFECTING  THE  DEVOLUTION.      103 


TITLE  TWO. 

OF   THE   INSTRUMENTALITIES   EFFECTING   THE 
DEVOLUTION. 


§  132.  Tribunals  and  Officers  employed  by  the  Law  to  accom- 
plish the  Devolution.  —  Having  in  the  preceding  pages  pointed 
out  the  principles  which  determine  the  succession  of  property 
upon  the  death  of  its  owner,  and  considered  the  various  channels 
through  which  it  descends  to  the  new  owners,  it  seems  natural 
now,  in  the  further  development  of  our  subject,  to  examine  the 
instrumentalities  employed  by  the  law  to  accomplish  and  con- 
trol the  devolution.  It  seems  more  convenient,  in  doing  this, 
though  not,  perhaps,  in  strictly  logical  sequence,  to  consider, 
in  the  first  place,  the  nature,  scope,  and  power  of  the  various 
courts  and  tribunals  armed  with  jurisdiction  in  this  resp>ect; 
and,  next,  the  nature  and  extent  of  the  authority  of  those  officers 
whom  the  law  intrusts  with  the  active  administration  of  the 
estates  of  deceased  persons. 


104  THE  LAW  OF  DECEDENTS'  ESTATES.  [§  133 


PART  I. 

OF  THE  TRIBUNALS  CONTROLLING  THE  ADMINISTRATION 
OF  THE  ESTATES  OF  DECEASED  PERSONS. 


CHAPTER  XIV. 

PROBATE    POWERS    AS    EXISTING    AT    COMMON    LAW    UNDER 
ENGLISH  STATUTES. 

§  133.  Origin  of  the  Ecclesiastical  Jurisdiction  over  Probate 
of  Wills.  —  It  is  indispensable  to  a  proper  understanding  of  the 
nature  of  Probate  Courts  in  the  United  States,  to  examine,  to 
some  extent  at  least,  the  method  of  settling  estates  of  decedents 
in  England,  in  order  to  gain  an  insight  into  the  principles  and 
doctrines  of  the  common,  civil,  and  canon  law  constituting  the 
unwritten  presuppositions,  tacitly  understood  and  premised, 
of  American  statutes  regulating  the  administration  of  the  es- 
tates of  deceased  persons.  j\Iuch  that  seems  contradictory, 
capricious,  or  incomprehensible  in  the  several  enactments  and 
decisions,  will  be  seen  to  harmonize,  and  the  principles  of  the 
civil  and  canon  law,  vitalizing  the  dry  formulae  of  the  common 
law,  will  serve  to  fill  out  and  round  off  the  statutory  provisions.^ 

This  branch  of  English  jurisprudence,  or  rather  of  practice 
under  the  common  law,  was  for  a  long  time,  and  until  quite 
recently,  known  as  well  by  the  name  of  ecclesiastical  as  by  that 
of  testamentary  or  probate  law,  because  the  clergy  had  assumed 
testamentary  jm-isdiction  and  exercised  it  in  their  spiritual 
courts.  In  England,  although  the  claim  and  practice  of  spiritual 
courts  in  this  particular  is  said  to  have  been  originally  a  mere 

^  Courts  of  probate  "exercise  many  powers  solely  by  virtue  of  our 
statutes;  but  they  have  a  very  extensive  jurisdiction  not  conferred  by 
statute,  but  by  a  general  reference  to  the  existing  law  of  the  land,  that  is, 
to  that  branch  of  the  common  law  known  and  acted  upon  for  ages,  the 
probate  or  ecclesiastical  law":  Bell,  C.  J.,  in  Morgan  v.  Dodge,  44  N.  H. 
255,  258. 


§  134]  PROBATE   POWERS   IN   ENGLAND.  105 

usurpation,  it  became  a  privilege  enjoyed  by  them,  not  as  a 
matter  of  ecclesiastical  right,  but,  as  Blackstone  puts  it,  by  the 
special  favor  and  indulgence  of  the  municipal  law,  producing 
what  he  terms  "a  peculiar  constitution"  of  the  island. 

This  jurisdiction,  exercised  in  the  county  court,  where  the 
bishop  and  the  earl  sat  conjointly  for  the  transaction  of  business 
until  the  separation  of  the  ecclesiastical  from  the  secular  juris- 
diction by  William  the  Conqueror,  was  plausibly  claimed  by 
the  bishop,  as  being  in  harmony  with  the  customs  of  the  Nor- 
mans, and  the  civil  and  canon  law,  which  gave  to  bishops  the 
charge  of  the  execution  of  testaments  containing  bequests  in 
pios  usus.  It  is  certain,  says  Bradford,  that  the  constitution 
of  the  ecclesiastical  tribunals  was  authorized  by  William;  and 
that  their  jurisdiction  included  the  probate  of  wills  soon  after, 
if  not  from  the  instant  of  separation  from  the  county  courts, 
is  almost  capable  of  direct  proof.^ 

§  134.  Origin  of  Administration  in  England.  —  Anciently, 
says  Blackstone,  the  king,  as  parens  yatricB,  seized  upon  the 
goods  of  persons  dying  intestate  and  administered  them 
through  his  ministers  of  justice,  probably  in  the  county  court; 
and  the  prerogative  was  granted  as  a  franchise  to  many  lords 
of  manors,  and  others,  who  continued  to  hold,  by  prescription, 
the  right  to  grant  administration  to  their  intestate  tenants 
and  suitors  in  their  own  courts  baron.  While  the  franchise  so 
granted  remained  in  the  prerogative  and  prescriptive  courts 
for  many  centuries,  and  until  the  passage  of  the  Probate  Act, 
together  with  the  jurisdiction  to  grant  probate  of  wills  of  per- 
sonalty, the  jurisdiction  formerly  exercised  by  the  king  or  his 
representatives  was  vested  in  favor  of  the  Church  in  prelates, 
"because  it  was  intended  by  the  law  that  spiritual  men  are  of 
better  conscience  than  laymen,  and  that  they  have  more  knowl- 
edge what  things  would  conduce  to  the  benefit  of  the  soul  of 
the  testator  than  laymen  have."  ^  The  Church,  accordingly, 
obtained  the  supervision  of  the  distribution,  or  administration, 
of  the  personal  property  of  intestates;  the  ordinary  might 
seize  them  and  keep  them  without  wasting,  and  also  might  give, 
alien,  or  sell  them  at  his  will,  and  dispose  of  the  money  in 
pios  usus. 

\  1  Bradf.  XXII;  3  Blackst.  96.  ^  Perk.  Prof.  Book,  §  486. 


106  THE  LAW  OF  DECEDENTS'   ESTATES.  [§  135 

The  State  soon  sought  to  limit  the  powers  originally  conferred 
witliout  restrictions,  and  legislated  in  that  direction.  The 
Statute  of  Westminster  II  (a.  d.  1285)  directed  tlie  ordinary 
to  pay  the  intestate's  debts  so  far  as  his  goods  extend,  which 
he  could  not  be  compelled  to  do  before  that  act.  Even  after 
it,  the  ordinary  was  not  accountable  for  the  residuum  after 
payment  of  debts,  until  by  the  Statute  of  31  Edward  III 
(a.  d.  1358)  the  estates  of  deceased  persons  were  directed  to 
be  administered  by  the  next  of  kin  of  the  deceased,  if  he  left 
no  will,  and  not  by  the  ordinary  or  any  of  his  immediate  de- 
pendants. This  statute  originated  the  system  of  confiding  the 
settlement  of  the  estates  of  intestates  by  their  next  of  blood, 
appointed  by  the  ordinary,  putting  them,  with  respect  to  suits 
and  accounting,  upon  the  same  footing  with  executors,  and 
making  them  officers  of  the  ordinary. 

§  135.  Powers  of  Ecclesiastical  Courts  in  England.  —  The 
common  law  of  England,  as  affected  by  the  statutes  above 
named,  and  such  of  those  noticed  below  as  were  enacted  before 
the  settlement  of  the  American  Colonies,  is  at  the  basis  of  the 
American  statutes  concerning  administration,  and  of  the  law 
in  the  American  States  in  so  far  as  it  has  not  been  supplanted 
by  their  own  statutes.  It  is  therefore  necessary  to  follow  still 
further  the  history  of  the  English  law  on  this  subject. 

The  Statute  of  Distributions  ^  destroyed  the  conunon-law 
right  to  the  pars  rationahilis,  and  made  the  estate  distributable 
among  the  widow  and  next  of  kin,  leaving  still,  however,  in 
the  hands  of  the  administrator,  for  his  own  use,  the  third 
formerly  retained  by  the  Church,  until  finally,  by  the  Statute 
of  1  Jac.  II,  c.  17,  tliis  third  was  made  distributable,  as  well  as 
the  remainder  of  the  intestate's  estate.^ 

The  powers  of  the  spiritual  courts  were  thus  restricted  to 
the  judicial  cognizance  of  the  class  of  cases  arising  out  of  the 
probate  of  wills,  the  grant  of  administration,  and  the  payment 
of  legacies,  and  thus  remained  until,  by  the  statute  creating 
the  court  of  probate,'  their  powers  in  this  respect  were  wholly 
abrogated.  The  authority  to  appoint  administrators,  and  to 
take  proof  of  wills,  resided  in  the  bishop  of  the  diocese  wherein 

1  22  and  23  Car.  II,  c.  10;  29  Car.  II,  c.  30. 

*  1  Bradf.  XXVI.  ^  20  and  21  Vict.  c.  77. 


§  135]  PROBATE  POWERS   IN  ENGL.\ND.  107 

the  testator  or  intestate  dwelt  at  the  time  of  his  death,  unless 
he  left  effects  to  such  an  amount  as  to  be  considered  notable 
goods  {bona  noiabilia,  fixed  by  the  ninety-third  of  the  canons 
at  the  value  of  £5  or  over)  within  some  other  diocese  or  pecu- 
liar; in  such  case  the  will  was  to  be  proved  before  the  metro- 
politan of  the  province  by  way  of  prerogative,  whence  the 
courts,  where  the  validity  of  such  wills  was  tried,  and  the 
offices  where  they  were  registered,  were  called  the  prerogative 
offices  of  Canterbury  and  York. 

The  spiritual  jurisdiction  of  testamentary  causes  is  described 
by  Blackstone  as  "a  peculiar  constitution  of  this  island;  for 
in  almost  all  other,  even  Popish  countries,  all  matters  testa- 
mentary are  under  the  jurisdiction  of  the  temporal  magistrate."  ^ 
It  was  exercised  by  the  consistory  courts  of  diocesan  bishops, 
and  in  the  prerogative  court  of  the  metropolitan,  generally, 
and  in  the  arches  court  and  court  of  delegates  by  way  of  appeal. 
It  is  divisible  into  three  branches,  the  probate  of  wills,  the  grant- 
ing of  administrations,  and  the  suing  for  legacies,  in  respect  to 
the  latter  of  which  the  jurisdiction  is  concurrent  with  courts  of 
equity. 

As  the  rules  of  the  canon  and  ci\'il  law  had  been  adopted  by 
the  ecclesiastical  courts,  they  gradually  became  the  basis  of  the 
ecclesiastical  law,  prevailing,  not  propria  vigore,  but  only  so 
far  as  the  custom  and  prescription  have  admitted  them  in  the 
spiritual  courts,  "  The  proceedings  in  the  ecclesiastical  courts," 
says  Blackstone,^  "are  therefore  regulated  according  to  the 
practice  of  the  canon  and  civil  law;  or  rather,  according  to  a 
mixture  of  both,  corrected  and  new-modelled  by  their  own  pecul- 
iar usages  and  the  interposition  of  courts  of  common  law.  .  .  . 
But  the  point  in  which  these  jurisdictions  are  most  defective 
is  that  of  enforcing  their  sentences  when  pronounced,  for  which 
they  have  no  other  process  but  that  of  excommunication; 
which  is  described  to  be  twofold:  the  lesser  and  the  greater 
excommunications."  ^ 


1  3  Bla.  Comm.  *  95. 

2  Ibid.,  *  100. 

'  By  act  of  53  Geo.  Ill,  c.  127,  the  sentence  of  excommunication  was 
displaced  by  the  writ  de  contumace  capiendo,  issued  out  of  chancery  upon 
the  significavit  of  the  ecclesiastical  court. 


108  THE  L.\W  OF  DECEDENTS'   ESTATES.  [§  136 

§  136.  Probate  Jurisdiction  in  Other  English  Courts.  —  The 
extent  of  jurisdiction  exercised  by  the  ecclesiastical  courts  of 
England  included  but  a  small  proportion  of  the  judicial  author- 
ity involved  in  the  adjudication  of  questions  arising  in  the  set- 
tlement of  dead  men's  estates.  To  some  extent,  the  power  to 
pass  upon  the  accounts  of  executors  and  administrators,  if  no 
trial  of  issues,  either  of  fact  or  law,  was  necessary,  and  to  grant 
them  a  discharge  after  a  true  accounting  seems  to  have  been 
exercised  by  the  ecclesiastical  tribunals.  But  the  trial  of  dis- 
puted accounts,  involving  the  testimony  of  witnesses,  questions 
of  devastavit,  liability  to  creditors,  legatees,  and  distributees, 
the  marshaling  of  assets,  recourse  to  real  estate  for  the  pay- 
ment of  debts  and  legacies,  etc.,  —  in  short,  the  control  over 
executors  and  administrators  in  every  respect  not  included  in 
the  probate  of  wills,  appointment  of  administrators,  and  pay- 
ment of  legacies,  —  was  exclusively  in  the  common-law  and 
chancery  courts,  as  well  as  the  appointment  and  removal  of 
guardians  and  curators  to  minors  and  persons  of  unsound  mind, 
and  the  control  over  them  in  respect  of  the  management  of 
their  estates.  It  should  therefore  be  remembered  that  there 
is  a  very  great  difference  between  the  totality  of  the  powers 
exercised  by  the  English  courts  in  connection  with  the  admin- 
istration of  estates  of  deceased  persons,  sometimes  called  testa- 
mentary or  probate  jurisdiction,  and  the  testamentary  or  pro- 
bate jurisdiction  of  ecclesiastical  courts,  —  a  distinction  which 
is  of  the  utmost  importance  in  ascertaining  the  conclusiveness 
of  the  judgments  and  decrees  of  the  several  classes  of  courts  in 
collateral  proceedings,  and  also  in  comparing  the  relative 
powers  of  ecclesiastical  courts  with  those  of  American  probate 
courts.  For  although  the  tribunals  established  in  the  Colonies 
were  at  first  modelled  after  those  of  the  mother  country,  whose 
functions  they  were  to  perform,  so  that  they  were  to  some  extent 
governed  by  the  rules  of  the  civil  and  canon  law,  and  in  some 
instances  took  even  the  name  of  their  prototypes,  yet  in  the 
course  of  time  they  were  invested  with  greater  powers  and  juris- 
diction, and  to  fit  them  for  the  efficient  exercise  of  the  new 
functions  invested  in  them,  they  were  made  courts  of  record, 
with  a  public  seal  and  a  clerk;  they  have  organized  process  and 
executive  officers,  stated  terms,  and  continued  functions.    The 


§  136]  PROBATE   POWERS   IN  ENGLAND.  109 

several  legislatures,  being  at  perfect  liberty  to  adapt  the  consti- 
tution and  powers  of  the  courts  to  the  requirements  and  conven- 
ience of  the  people,  invested  these  tribunals,  not  only  with  the 
powers  possessed  by  the  spiritual  courts  in  England,  but,  in 
most  instances,  with  all  the  powers  possessed  by  the  English 
ecclesiastical,  common  law,  and  chancery  courts,  in  so  far  as 
they  were  necessary  to  control  the  administration  of  decedents' 
estates;  and  within  the  sphere  of  the  jurisdiction  conferred 
upon  them  they  are  a  branch  of  the  judiciary  of  the  State,  as 
much  so  as  any  other  court  of  general  or  plenary  power. 


110  THE   Lu\W   OF  DECEDENTS'   ESTATES.  [§  137 


CHAPTER  XV. 

NATURE   OF  PROBATE   COURTS  IN  AMERICA. 

§  137.  Origin  of  Probate  Courts  in  America.  —  The  essential 
characteristics  of  courts  whose  office  it  is  to  control  the  admin- 
istration of  estates  not  owned  by  persons  competent  to  act  sui 
juris,  have  been  indicated  in  an  earlier  chapter.  It  will  appear 
from  the  consideration  of  the  nature,  power,  and  scope  of  the 
courts  intrusted  with  this  species  of  jurisdiction  in  the  several 
American  States,  to  what  extent  the  principle,  there  mentioned 
as  resulting  from  the  nature  of  property  and  the  office  of  the 
State,  has  been  practically  realized  and  found  recognition  in 
the  statute-books.  It  is  easy  to  understand  why  this  principle 
was  so  inadequately  recognized,  and  never  expressed  as  an 
organic  element  of  the  law,  in  England. 

But  in  America  circumstances  have  been  peculiarly  favorable 
to  the  rational  development  of  this  principle.  Ecclesiastical 
courts  with  secular  powers  did  not  exist.  Prerogatives  and 
prescriptive  rights  were  swept  away  by  the  republican  spirit  of 
the  people.  The  legislatures  were  unhampered  by  the  traditions 
and  customs  of  the  mother  country,  armed  with  full  authority 
to  carry  out  the  views  and  convictions  of  the  people,  who  thus 
exerted  a  controlling  influence  in  shaping  the  law  and  regulating 
the  practice  of  managing  and  settling  estates  of  deceased  persons 
and  minors;  for  no  branch  of  the  law  concerns  the  general  public 
so  universally,  and  affects  their  interests  so  directly,  as  this. 
The  consequence  has  been  a  rapid  development  of  the  law  of 
administration,  particularly  in  those  States  which  early  cut 
loose  from  the  common-law  doctrines  in  this  respect.  The 
American  courts  of  probate,  with  their  extensive  powers,  their 
simple  and  efficient  procedure,  their  happy  adaptation  to  the 
wants  of  the  people  in  the  safe,  speedy,  and  inexpensive  settle- 
ment of  the  estates  of  deceased  persons  attest  the  marvellously 
clear  insight  of  the  people  of  the  Colonies  and  young  States  into 


§  13S]  NATURE   OF  PROBATE  COURTS  IN  MIERICA.  Ill 

the  principles  involved,  and  the  genuine  instinct  which  guided 
them  in  their  reaUzation.  Necessarily  diverse  in  their  details,  as 
the  systems  of  the  several  States  cannot  but  be,  since  each  State 
enacts  its  own  code,  there  is  a  common  intendment  of  them  all 
in  the  direction  of  recognizing  the  law  of  administration  as  a 
distinct,  independent  branch  of  jurisdiction,  based  upon  and  de- 
termined by  its  own  inherent  principles.  The  rich  and  manifold 
experiences  of  over  a  century  of  unexampled  national  growth 
and  development  have  tended  to  mould  these  systems  in  the 
national  spirit  conmion  to  all  the  States;  as  each  is  the  reflex 
of  the  nation,  so  their  institutions  are  rapidly  assimilating  into 
a  national  system,  in  wliich  the  incongruities  incidental  to  the 
experimental  enactments  of  the  several  and  independent  legis- 
latures are  gradually  disappearing  before  the  light  of  common 
experience  and  intelligent  discussion.^ 

§  138.  American  Statutes  the  only  Source  of  Probate  Powers 
in  the  States.  —  We  have  seen  that  by  the  common  law  the 
entire  scope  of  jurisdiction  over  the  estates  of  deceased  persons 
vested  in  the  ecclesiastical,  common-law,  and  chancer^'  courts. 
Hence,  there  being  no  ecclesiastical  courts  in  America,  all  such 
jurisdiction,  in  so  far  as  it  became  a  part  of  the  juridical  sj-stem 
of  the  States,  necessarily  vested  in  the  common-law  and  chancery 
courts,  to  the  extent  in  which  it  was  not  lodged  elsewhere  by 
statute.  It  follows  from  this,  that  although  in  many  of  the 
States  the  constitution  establishes  or  pro\ades  for  the  establish- 
ment of  courts  of  probate,  yet  they  take  all  their  powers  from 
the  statutes  regulating  them. 

From  this  circumstance  arises  an  important  rule  to  be  observed 
in  ascertaining  the  extent  of  power  lodged  in  any  one  of  this 
class  of  courts:  they  can  exercise  such  powers  only  as  are  directly 
conferred  upon  them  by  legislative  enactment,  or  necessarj'  to 
carry  out  some  power  so  conferred.  Unless  a  warrant  for  the 
exercise  of  jurisdiction  in  a  particular  case  can  be  found  in  the 
statute,  given  either  expressly  or  by  implication,  the  whole 
proceeding  is  void.^  But  where  jurisdiction  is  conferred  over 
any  subject-matter,  and  it  becomes  necessary  in  the  adjudica- 
tion thereof  to  decide  collateral  matters  over  which  no  juris- 

*  Woemer  on  Administration,  §  141, 
2  Ibid.,  §  142. 


112  THE  L-\W  OF  DECEDENTS'  ESTATES.  [§  139 

diction  has  been  conferred,  the  court  must,  of  necessity,  decide 
such  collateral  issues. 

The  courts  so  created  took  various  names.  In  many  of  the 
States  tliey  are  known  as  Probate  Courts,  or  Courts  of  Probate, 
which  is  also  the  name  given  to  the  English  court  created  in 
1S57,  to  which  the  jurisdiction  previously  exercised  by  eccle- 
siastical, manorial,  and  other  courts  of  testamentary  jurisdic- 
tion was  transferred.  This  term  is  indicative  of  one  of  the  chief 
and  characteristic  elements  of  their  powers,  and  is  used  in 
this  treatise  to  designate  all  courts  of  this  class,  being  at  once 
the  most  convenient,  familiar,  and  accurate. 

§  139.  Their  Dignity  as  Courts.  —  In  consequence  of  statu- 
tory origin  of  courts  of  probate,  they  have  been  said  to  be 
courts  of.  limited,  inferior,  special  and  limited,  limited  though 
not  special,  or  limited  though  not  inferior  jurisdiction.  The 
result  of  this  peculiarity,  i.  e.,  their  lack  of  all  power  save  as 
conferred  by  statute,  has  been,  in  some  of  the  States,  to  deprive 
their  judgments  and  decrees  of  all  validity  unless  the  facts 
upon  which  their  jurisdiction  depends  appear  affirmatively 
from  the  face  of  their  proceedings.  But  this  view  does  not  seem 
sound  on  principle;  it  ignores  the  character  of  these  tribunals 
as  courts,  and  the  necessity  that  their  judgments  and  decrees 
should  be  binding,  as  authoritative  announcements  of  the  law, 
upon  all  the  world.  It  is  held  that  federal  courts,  although  of 
limited  jurisdiction,  are  not  inferior  courts  in  the  technical  sense; 
and  that  their  judgments,  although  reversible  by  writ  of  error 
or  appeal,  are  binding,  although  the  jurisdictional  facts  be  not 
alleged  in  the  pleadings.  The  doctrine  that  judgments  of  pro- 
bate courts  are  void  unless  the  facts  upon  which  their  jurisdic- 
tion depends  appear  of  record  arose  probably  from  the  necessity 
of  the  application  of  such  a  rule  to  the  ecclesiastical  courts  of 
England,  whose  jurisdiction  was  exceedingly  limited,  which 
were  not  courts  of  record,  possessed  no  means  of  enforcing  their 
judgments  or  decrees,  and  whose  exercise  of  jurisdiction  was 
jealously  scanned  by  the  temporal  courts  to  guard  against  en- 
croachment and  usurpation.  No  one  of  these  reasons  exists 
in  the  United  States.^  Courts  of  probate  in  America  are  entitled 
to  the  sanction  which  every  court  of  record  holds;  they  are  not 
1  Tucker  v.  Harris,  per  Lumpkin,  J.,  13  Ga.  1,  8. 


§§  140,  141]      NATURE   OF  PROBATE  COURTS   IN  AMERICA.  113 

to  be  classed  with  those  tribunals  which  have  no  authority  be- 
yond special  powers  for  the  performance  of  specific  duties,  little 
or  in  no  wise  relating  to  the  general  administration  of  justice, 
whose  modes  of  proceeding  are  prescribed  by  the  statute/  but 
are  of  that  class  of  courts  whose  judgments,  like  those  of  the 
federal  courts,  are  held  good  without  a  recital  of  the  facts 
upon  which  they  rest.  The  subject  of  the  validity  of  judgments 
and  decrees  of  probate  courts  is  more  fully  considered  hereafter. 

§  140.  Their  Powers  as  Judicial  Tribunals.  —  They  are  in 
most,  if  not  all,  of  the  States  courts  of  record,  having  a  public 
seal  and  a  clerk,  or  authority  in  the  judge  to  act  as  clerk, 
organized  process,  and  executive  officers,  as  well  as  stated 
terms  and  continuing  functions.  Within  the  field  of  their  juris- 
diction they  are  as  much  a  branch  of  the  judiciary  of  the  State 
as  any  court  of  general  or  plenary  powers.  As  judicial  tribunals 
they  have  the  inherent  power  as  such  to  punish  for  contempt  to 
the  same  extent  as  common-law  courts,  to  compel  obedience 
to  their  orders  and  decrees,  and  their  judgments  upon  matters 
within  their  jurisdiction  are  enforced,  usually,  by  the  same 
means  which  are  at  the  disposal  of  common-law  and  chancery 
courts.  Their  orders,  judgments,  and  decrees  are  therefore  as 
conclusive  upon  the  parties  to  the  record,  until  reversed  or  an- 
nulled on  appeal,  writ  of  error,  or  direct  proceeding  in  chancery 
for  fraud,  as  decrees  in  chancery  or  judgments  at  law;  ^  but  if 
want  of  jurisdiction  appears  from  the  face  of  the  proceedings, 
they  are,  like  the  judgments  of  any  court  under  like  circum- 
stances, merely  void. 

Although  these  courts  are  courts  of  record,  it  does  not  follow 
that  they  recognize  an  "attorney  of  record."  Parties  in  interest 
may  appear  in  person,  by  agent,  or  attorney  at  law;  they  may 
appear  by  one  attorney  at  one  hearing,  and  by  another  on  the 
next.  Notice  or  process  served  upon  an  attorney  is  of  no  more 
avail  than  if  served  upon  a  stranger,  unless  the  party  respond 
to  the  notice  or  summons. 

§  141.  Conclusiveness  of  their  Judgments  in  Collateral  Pro- 
ceedings. —  The  development  and  growth  of  the  jurisdiction  of 

*  Such  a-s  commissioners,  surv^eyors,  appraisers,  committees,  directors, 
overseers,  and  the  like:  Obert  v.  Hammel,  18  N.  J.  L,  73,  79. 
2  Woemer  on  Administration,  §  144. 


114  THE   LAW   OF  DECEDEXTS'   ESTATES.  [§  141 

courts  of  probate  in  the  United  States  has  given  occasion  to  con- 
siderable divergence  in  the  authorities  on  the  question  whether 
their  judgments  are  conclusive,  or  impeachable  collaterally  — 
that  is,  in  a  proceeding  not  directly  assailing  the  judgment  in 
question.  The  uncertainty  produced  by  the  vacillation  of 
courts  in  this  respect  is  not  only  perplexing  to  the  administra- 
tors, practitioners,  and  judges,  but  injurious  and  sometimes 
ruinous  to  the  interests  of  all  persons  concerned  in  the  admm- 
istration  of  estates;  and  particularly  to  the  purchasers  of  real 
estate  sold  under  the  order  of  probate  courts,  who  sometimes 
lose  the  fruits  of  their  purchase  because  the  officers  of  the  court 
are  not  sufficiently  skilled  or  careful  to  let  the  record  show  all 
jurisdictional  facts;  and  to  the  heirs  or  creditors,  because  the 
risk  incurred  by  purchasers  depresses  the  price  of  the  property 
at  the  sale. 

On  principle  there  seems  to  be  no  difficulty  attending  the 
question,  except,  perhaps,  to  ascertain  whether  the  tribunal  in- 
trusted with  jm-isdiction  in  probate  matters  is  a  court,  with 
judicial  functions  in  the  common-law  sense,   or  whether  its 
functions  are  ministerial  only,  or  having  no  authority  beyond 
special  powers  for  the  performance  of  specific  duties  not  relating 
to  the  general  administration  of  justice.     If  the  latter  be  the 
case,  it  is  ob\-ious  that,  to  give  validity  to  its  acts,  it  must 
affirmatively  appear  that  ever}i;hing  necessary  to  such  end 
has  been  observed.    But  if  it  be  found  that  the  tribunal  is  one 
competent  to  decide  whether  the  facts  in  any  given  matter 
confer  jurisdiction,  it  follows  with  inexorable  necessity  that, 
if  it  decides  that  it  has  jurisdiction,  then  its  judgments  within 
the  scope  of  the  subject-matters  over  which  its  authority  ex- 
tends, in  proceedmgs  following  the  lawful  allegation  of  circum- 
stances  requiring   the   exercise  of   its  power,  are  conclusive 
against  all  the  world,  unless  reversed  on  appeal,  or  avoided 
for  error  or  fraud  in  a  direct  proceeding.    It  matters  not  how 
erroneous  the  judgment:  being  a  judgment,  it  is  the  law  of  that 
case,  pronounced  by  a  tribunal  created  for  that  purpose.    To 
allow  such  judgment  to  be  questioned  or  ignored  collaterally, 
would  be  to  ignore  practically,  and  logically  to  destroy,  the 
court.    And  it  is  not  necessary  that  the  facts  and  circumstances 
upon  which  the  jurisdiction  depends  shall  appear  upon  the  face 


§  141]  NATURE   OF   PROBATE   COURTS   IN  AMERICA.  115 

of  their  proceedings,  because,  being  competent  to  decide,  and 
having  decided,  that  such  facts  exist  by  assuming  the  jurisdic- 
tion, this  matter  is  adjudicated,  and  cannot  be  collaterally 
questioned. 

The  English  ecclesiastical  and  manorial  courts  were  not  courts 
in  the  common-law  sense,  —  "they  did  not  proceed  according 
to  the  common-law,"  —  hence  the  English  rule  requiring  them 
to  show  jurisdictional  facts  on  the  face  of  their  proceedings. 

Many  of  the  American  courts  of  probate  were,  in  early 
colonial  times,  modelled  after  the  ecclesiastical  courts;  hence 
the  necessity  of  the  same  rule  as  applicable  to  their  acts,  and 
the  early  American  cases  so  holding. 

In  the  progress  of  time,  however,  most  of  these  courts  were 
remodelled  and  vested  with  greatly  increased  judicial  powers, 
made  courts  of  record,  etc.  The  reform  was  initiated  and  carried 
out  by  the  legislative  branch  of  government,  —  the  only  one 
having  power  to  accomplish  it,  —  thus  compelling  the  judiciary 
to  follow;  and  it  is  but  natural,  perhaps,  that  they  followed 
reluctantly.  Lawyers  and  judges  were  equally  imbued  with  the 
doctrines  of  the  common  law  which  ignored  the  ecclesiastical 
courts  as  judicial  tribunals;  and  they  found  it  difficult  to  assign 
to  the  American  probate  courts  a  different  status.  And  since 
the  enlargement  of  their  powers  emanated  from  as  many  dif- 
ferent sources  as  there  are  States,  and  proceeded  in  as  many 
different  channels,  it  is  not  strange  that  for  a  long  time  there 
was  very  great  divergence  in  their  decisions.  It  is  gratifying 
to  observe,  however,  that,  while  unanimity  has  by  no  means 
been  attained,  yet  the  magnitude  of  the  divergence  is  gradu- 
ally diminishing,  in  the  proportion  in  which  the  principle 
upon  which  these  courts  rest  is  understood  and  practically 
realized. 

Thus  it  is  denied  by  the  federal  courts  that  courts  of  probate 
are  in  any  technical  sense  inferior  courts,  and  their  judgments 
within  the  sphere  of  their  jurisdiction  are  as  conclusive  as 
those  of  the  circuit  or  any  other  general  court,  and  entitled  to 
the  same  intendments  and  presumptions  in  their  favor.  A 
great  majority  of  the  States  hold  the  same  doctrine;  but  several 
still  require  that  in  order  to  secure  the  validity  of  judgments 
of  probate  courts  against  collateral  assailability  substantial 


116  THE  LAW   OF  DECEDENTS'  ESTATES.         [§§  142,  143 

compliance  with  the  statutory  requirements  must  be  affirma- 
tively shown  by  the  record.' 

§  142.  How  far  Probate  Courts  may  correct  their  Judgments.  — 
The  rule,  applicable  to  all  common-law  courts,  that  during  the 
continuance  of  the  term  the  record  remains  in  the  breast  of  the 
judge,  and  the  record  as  well  as  the  judgment  itself  may  be 
altered,  revised,  or  revoked,  as  well  as  amended  in  respect  of 
clerical  errors  and  matters  of  form,  is  equally  applicable  to  pro- 
bate courts.  All  the  days  of  the  term  are  considered  as  one, 
and  everything  is  in  the  power  of  the  court  during  its  contin- 
uance. But  this  power  must  not  be  exercised  unless  the  parties 
to  be  affected  are  present  in  court,  or  have  notice,  so  that  they 
may  be  heard  if  they  desire;  and  the  presence  of  the  parties,  or 
notice  to  them,  must  appear  from  the  record  itself;  no  presump- 
tion of  notice  arises  where  the  record  is  silent.  Any  change  or 
amendment  must  also  be  upon  such  terms  as  will  protect  the 
interests  of  third  parties. 

But  a  court  can  neither  change  nor  disregard  its  orders, 
judgments,  or  decrees  after  the  lapse  of  the  term  at  which  they 
were  rendered.  It  is  consistent  with  this  principle  that  it  is 
the  duty  of  a  court,  if  the  judgment,  decree,  or  order  is  clearly 
void  for  the  want  of  jurisdiction,  or  other  defect  apparent  from 
the  record,  to  vacate  the  same  upon  proper  application.  But 
in  the  absence  of  statutory  grant  of  power  to  open  orders  and 
decrees,  or  to  grant  rehearing  to  litigants,  they  have  no  power 
to  revise  their  decisions  on  the  ground  of  error,  either  of  law  or 
fact;  except,  as  will  be  more  fully  noticed  below,  during  the 
continuance  of  the  term  at  which  they  were  rendered.  The 
subject  is  affected  by  statutes  in  some  States. 

§  143.  Entering  Judgment  nunc  pro  tunc.  —  The  power  to 
record  a  judgment  or  order  at  any  time  after  it  was  rendered, 
and  to  correct  a  judgment  or  order  erroneously  entered,  resides 
in  the  probate  courts  equally  with  common-law  courts.  This 
power  originated  in  the  maxim,  that  "  an  act  of  the  court  shall 
prejudice  no  one,"  or,  as  worded  by  Freeman,  "a  delay  of  the 
court  shall  prejudice  no  one,"  and  was  originally  employed  to 
relieve  parties  from  hardships  arising  out  of  the  delay  of  courts, 
by  entering  a  judgment  mmc  pro  tunc  as  of  the  day  on  which 
^  See  Woerner  on  Administration,  §  145. 


§  144]  NATURE   OF   PROBATE   COURTS   IN  AMERICA.  117 

it  ought  to  have  been  rendered;  but  is  now  resorted  to  for  the 
purpose  of  entering  of  record  judgments  rendered,  but  through 
inadvertence  not  entered,  and  of  correcting  judgments  errone- 
ously entered,  nunc  pro  tunc,  as  they  ought  originally  to  have 
been  entered  of  record. 

There  is  some  difference  of  opinion  as  to  the  circumstances 
which  shall  be  sufficient  to  authorize  a  nunc  pro  tunc  entry. 
The  purpose  to  be  accomplished  is  salient  enough;  it  is  to  secure 
a  true  record  of  the  precise  ruling  of  the  judge  as  originally 
pronounced,  in  cases  where  the  record  is  silent,  or  inaccurate, 
or  false.  But  the  question  here  arising.  How  is  the  truth  of 
the  entry  to  be  established?  is  not  so  easily  answered. 

The  logical  and  safe  rule  seems  to  be  that  laid  down  in  the 
English  statutes  on  this  subject.  The  rule  deducible  from  these 
statutes  is,  that  no  amendment  of  the  record  can  be  made 
unless  there  be  a  mistake  of  the  clerk,  and  something  in  the 
record  by  which  the  mistake  can  be  rectified. 

This  rule  is  adhered  to  in  the  federal  courts,  and  in  a  large 
number  of  States.  In  other  States,  entries  nunc  pro  tunc  are 
allowed  upon  parol  evidence  or  upon  the  memory  of  the  judge. 

The  correction  of  the  record  must  be  drawn  with  the  view  of 
protecting  the  rights  of  third  parties  acquired  by  virtue  of  the 
original  entry  and  before  correction  thereof,  and  after  notice 
to  the  parties  to  be  affected  by  it.^ 

§  144.  Proceeding  in  Rem  and  in  Personam.  —  The  expres- 
sion is  often  used,  in  asserting  for  th£  judgments  of  probate 
courts  a  validity  not  claimed  for  them  in  respect  of  judgments 
in  personam,  that  from  the  nature  of  the  jurisdiction  exercised 
by  them  they  proceed  in  rem.  The  judgment,  being  in  rem, 
it  is  said  is  conclusive  upon  all  the  world,  and  hence  all  persons 
whatever  have  a  right  to  be  heard  in  the  proceeding.  Even 
parties  not  in  esse  at  the  time  of  the  judgment  have  been  held 
to  be  concluded.  The  judgment  however  is  only  as  to  the  res 
or  status  established,  as  to  which  persons  in  interest  could  be 
heard,  and  the  expression  that  the  decree  is  binding  on  all  the 
world  does  not  mean  that  it  is  binding  in  a  collateral  proceeding, 
as  to  the  facts  found,  so  far  as  persons  who  were  strangers  in 
interest  to  the  proceeding  are  concerned;  hence  the  binding 
*  Woemer  on  Administration,  §  147. 


118  THE   L-\W   OF  DECEDENTS'   ESTATES.  [§  144 

effect  of  the  decree  in  rem  is  limited  to  the  assets  within  the 
State,  and  is  not  extended  so  as  to  conclude  the  courts  of  another 
State  as  to  the  assets  there.  Possession  of  the  thing  (custody 
of  the  res)  is  one  of  the  essential  conditions  of  jurisdiction  over 
the  thing.  Every  other  requisite  may  be  conceded;  and  if 
executors  and  administrators  be  looked  upon  as  officers  of  the 
court,  so  that  possession  by  them  may  be  considered  possession 
by  the  court,^  the  disposition  of  personal  property  by  order  or 
judgment  of  the  probate  court  is  clearly  a  proceeding  in  rem. 
The  law  vests  title  to  all  personal  property  of  a  decedent  in 
his  executor  or  administrator,  and  requires  the  latter  to  notify 
"all  the  world,"  by  publication,  of  his  assumption  of  the  office, 
—  a  proceeding  constituting  the  notice,  monition,  or  proclama- 
tion required  to  obtain  jurisdiction  in  rem.  The  same  principle 
is  applicable  to  real  estate,  where,  as  is  the  case  in  a  number  of 
States,  it  passes  to  the  personal  representative. 

But  the  title  to  real  property  vests,  in  most  States,  not  in  the 
executor  or  administrator,  but  in  the  de\asee  or  heir.  Hence,  in 
all  of  these  States,  the  essential  requisite  of  jurisdiction  in 
rem,  possession,  the  custody  of  the  res,  is  wanting  in  respect  of 
real  estate.  It  is  provided  in  most  States  that  notice  must  be 
given  to  the  heirs,  or  others  interested  in  real  estate,  either  by 
personal  service  or  publication,  before  real  estate  can  be  sub- 
jected to  the  satisfaction  of  debts  of  the  decedent.  When  such 
notice  has  been  given,  the  importance  of  the  distinction  between 
proceeding  in  rem  and  in  personam  disappears:  if  the  notice 
was  by  actual  ser\ace  on  the  parties,  they  are  parties  to  the  rec- 
ord, and  as  such  bound  by  the  judgment  of  the  court;  if  by 
publication,  then  the  analogy  to  the  proceeding  in  rem  is  com- 
plete; the  title  of  the  administrator  is  thereby'  extended  over 
the  real  estate,  and  displaces  that  of  the  heir  or  devisee  for  the 
purposes  pointed  out  by  the  law.  The  judgment  affects  neither 
the  person  nor  any  other  property  of  the  heirs  or  devisees  save 
that  described  in  the  notice  published,  which  may  then  be  said 

^  Says  Brewer,  J.,  in  delivering  the  opinion  of  the  United  States  Su- 
preme Court  in  Byers  v.  McAuley,  149  U.  S.  60S,  615:  "An  administrator 
appointed  by  a  State  court  is  an  officer  of  that  court;  his  possession  of 
the  decedent's  property  is  a  possession  taken  in  obedience  to  the  orders  of 
that  court;  it  is  the  possession  of  the  court,  and  cannot  be  disturbed  by 
any  other  court." 


§  145]  NATURE   OF  PROBATE   COURTS   IN   AMERICA.  119 

to  be  in  the  custody  of  the  law.  But  if  no  notice  was  given  to 
parties  in  interest,  and  the  administrator  was  not  in  possession 
of  the  land,  under  the  law  of  the  State,  then  the  proceeding  is 
necessarily  void,  being  neither  in  rem  nor  in  personam. 

It  is  hardly  necessary  to  repeat  that  the  jurisdiction  exer- 
cised b}^  probate  courts  in  adjudicating  upon  the  rights  of 
litigating  parties,  is,  so  far  as  such  parties  are  present  in  court 
or  represented  by  counsel,  strictly  followed  by  all  the  conse- 
quences attendant  upon  adjudications  in  personam,  to  the 
extent  of  the  subject-matter  over  which  the  court  has  power. 

§  145.  Method  of  Procedure  in  Probate  Courts.  —  Although 
probate  courts  are  mostly,  if  not  universally,  courts  of  record, 
having  a  seal,  a  clerk  or  authority  to  act  as  their  own  clerk, 
and  executive  officers,  yet  their  procedure  is,  generally,  sum- 
mary, requiring  no  pleading  in  the  technical  sense,  nor  adherence 
to  artificial  rules  in  the  statement  of  the  cause  of  action  or 
defence.  An  intelligible  statement  of  an  existing  substantial 
right,  which  the  court  has  jm-isdiction  to  enforce,  is  a  sufficient 
allegation  of  all  matters  necessary  to  sustain  a  judgment;  and 
the  simple  appearance  of  the  defendant  usually  entitles  him  to 
rebut  the  proof  offered  by  the  other  side,  or  prove  any  matter 
in  defence;  save,  perhaps,  a  cause  of  action  constituting  a  set-off 
or  counter  claim,  of  which  the  other  side  must  have  sufficient 
notice  to  enable  it  to  prepare  any  defence  it  may  have  to  the 
same. 

It  lies  in  the  nature  of  these  courts,  that  in  the  exercise  of 
their  jurisdiction  they  are  not  confined  to  legal  principles  or 
the  rules  of  common-law  courts,  but  exercise  equitable  powers 
as  well.  Whenever,  within  the  scope  of  the  statutory  jurisdic- 
tion confided  to  them,  the  relief  to  be  administered,  the  right 
to  be  enforced,  or  the  defence  to  an  action  properly  pending 
before  them,  involves  the  application  of  equitable  principles, 
or  a  proceeding  in  accordance  with  the  practice  in  chancery, 
their  powers  are  commensurate  with  the  necessity  demanding 
their  exercise,  whether  legal  or  equitable  in  their  nature. 

But  they  possess  these  powers  only  in  so  far  as  they  have 
been  conferred  by  statute,  or  are  indispensable  to  the  exercise 
of  such  as  have  been  conferred.  They  have  no  original  chancery 
powers,  such  as  to  enforce  a  vendor's  lien,  no  ancillary  juris- 


120  THE  LAW  OF  DECEDENTS'  ESTATES.  [§  145 

diction  in  aid  of  common-law  courts,  no  power  to  follow  a  trust 
fund  through  various  transformations,  or  to  require  a  fund  to 
be  paid  into  court  in  advance  of  distribution,  nor  to  entertain 
an  equitable  bill  for  construction  of  a  will,  nor  for  interpleader, 
nor  over  any  purely  equitable  right.  The  resemblance  of  pro- 
bate courts  to  courts  of  chancery  consists  in  their  practice  of 
proceeding  by  petition  and  answer,  containing  the  substance, 
but  not  the  nice  distinctions,  of  a  bill  in  equity. 

Although  the  right  of  trial  by  jury  is  secured  in  most  States 
to  claimants  seeking  to  establish  their  claims  in  probate  courts, 
yet  the  power,  inherent  in  courts  proceeding  according  to  the 
principles  of  the  common  law,  to  instruct  the  jury  and  to  direct 
or  set  aside  a  verdict  and  grant  a  new  trial,  does  not  exist  in 
probate  courts  unless  affirmatively  granted  by  statute. 

But  the  rules  of  evidence  and  of  property  are  equally  binding 
upon  probate  and  conxmon-law  courts. 


§§  146,  147]        SUBJECT-MATTER   OF  JURISDICTION.  121 


CHAPTER  XVI. 

OF    THE    SUBJECT-MATTER    WITHIN    THE    JURISDICTION    OF 
PROBATE   COURTS. 

§  146.  Scope  of  the  Jurisdiction.  —  Logically,  the  jurisdiction 
of  probate  courts  should  extend  to  all  matters  necessarily  in- 
volved in  the  disposition  of  the  estates  of  deceased  persons, 
from  the  time  of  the  owner's  death  until  the  property  has  been 
placed  in  the  possession  of  those  to  whom  it  devolves.  We  have 
seen  that  the  English  testamentary  courts  never  possessed  more 
than  a  comparatively  small  proportion  of  this  power;  and  it  is 
equally  true  that  in  no  one  of  the  American  States  is  the  whole 
of  it  vested  in  probate  courts.  Some  of  the  elements  of  power 
necessary  to  the  practical  realization  of  the  rights  of  creditors, 
heirs,  legatees,  distributees,  devisees,  and  of  the  husband, 
widow,  and  minor  children,  are  found  wanting  in  the  statutory 
grant  of  powers  to  these  courts  in  each  State,  which  therefore 
necessarily  lodge  in  other  courts.  But  the  powers  so  withheld 
are  not  the  same  in  all  the  States;  those  denied  in  some  are 
granted  in  others;  so  that,  while  no  one  probate  court  possesses 
them  all,  yet  the  full  scope  of  jurisdiction  strictly  subsumable 
under  the  principle  which  conditions  this  class  of  courts  will 
be  found  in  the  aggregate  of  powers  conferred  upon  them  in 
the  several  States. 

It  would  involve  unprofitable  labor  to  enumerate  in  this  place 
the  powers  directly  conferred  by  statute,  which  may  be  readily 
found  in  the  enactments  of  the  several  States  conferring  the 
powers.  But  it  should  be  mentioned  that  as  to  the  incidental 
powers  there  is  considerable  divergence  in  the  different  States, 
resulting  from  the  different  views  taken  by  the  courts  upon  the 
extent  to  which  implied  powers  are  involved  in  the  powers 
granted. 

§  147.  Jurisdiction  as  limited  to  the  Devolution  of  Property 
on  the  Owner's  Death.  —  Since  the  functions  of  probate  courts 


122  THE  hXW   OF  DECEDENTS'   ESTATES.  [§  MS 

are  limited,  in  respect  of  executors  and  administrators,  to  the 
control  of  the  devolution  of  property  upon  the  death  of  its 
owner,  it  is  not  their  province  to  adjudicate  upon  collateral 
questions.  The  right  or  title  of  the  decedent  to  property  claimed 
by  the  executor  or  administrator  against  third  persons,  or  by 
third  persons  against  him,  as  well  as  claims  of  third  persons 
against  creditors,  heirs,  legatees,  devisees,  or  distributees, 
must,  if  an  adjudication  become  necessary,  be  tried  in  courts  of 
general  jurisdiction,  unless  such  jurisdiction  be  expressly  con- 
ferred on  probate  courts.^  It  follows  from  this  principle,  that 
probate  courts  have  no  power  to  investigate  the  validity  of  an 
assignment  of  the  interest  of  an  heir  or  legatee ;  the  decree  of 
distribution  or  payment  should  be  to  the  legal  successor  of  the 
property,  leaving  questions  of  disputed  rights  betw^een  these 
and  claimants  against  them  to  be  adjudicated  in  the  ordinary 
courts.  And  this  is  so  of  the  assignments  of  creditors,  of  lega- 
tees, of  distributees.  But  it  must  not  be  inferred  from  this  that 
the  probate  court  has  no  authority  to  decree  payment  to  an 
assignee  whose  right  is  not  disputed,  or  where  the  distributee 
is  estopped  by  a  release;  for  the  decree  in  favor  of  the  assignee, 
assented  to  by  the  assignor,  is  of  the  same  effect  as  a  decree  in 
favor  of  the  assignor.  Neither  has  the  probate  court  jurisdic- 
tion in  actions  where  personal  property  is  seized  or  claimed 
by  the  executor  or  administrator  as  a  part  of  the  estate,  and 
claimed  by  others  by  title  paramount  to  the  deceased.  So  the 
probate  court  has  no  jurisdiction  of  questions  between  trus- 
tee and  beneficiary,  or  to  compel  an  accounting  between  a 
testamentary'  trustee  and  the  cestui  que  trust.  The  jurisdiction 
of  the  probate  court  ceases,  when  an  executor,  who  is  also 
trustee,  has  made  his  final  settlement ;  a  court  of  equity  alone 
can  enforce  the  testamentary  trusts;  but  until  distribution  he 
holds  as  executor,  and  not  as  trustee,  and  equity  has  no  juris- 
diction.- 

§  148.  Liabilities  arising  from  Administration.  —  Upon  the 
same  principle,  probate  courts  have  no  jurisdiction  to  decree 
payment  to  persons  employed  by  the  executor  or  administrator 
to  render  services  for  him,  or  for  the  estate,  in  its  administra- 
tion.   Although  it  may  be  the  duty  of  the  court,  in  passing  upon 

^  Woemer  on  Administration,  §  151.  ^  Ibid. 


§§  149-151]  SUBJECT-MATTER   OF  JURISDICTION.  123 

the  administration  account,  to  determine  the  reasonableness 
of  payments  for  such  services,  and  allow  or  reject  the  credits 
taken  therefor,  it  has  not  the  power,  unless  expressly  granted 
by  statute,  to  adjudicate  upon  the  claims  of  such  persons  against 
the  administrator;  their  remedj^,  if  he  refuse  to  pay,  is  in  another 
court.  Debts  created  after  the  death  of  the  intestate  or  testator 
cannot  be  proved  in  the  probate  court;  nor  can  the  probate 
court  adjust  the  rights  or  equities  arising  out  of  the  sale  of  real 
estate,  or  out  of  the  vacation  of  the  sale,  between  the  purchaser 
and  administrator;  nor  between  coadministrators  as  to  the  com- 
missions allowed  them  in  gross,  unless  the  power  is  conferred 
by  statute.^ 

§  149.  —  Adjudication  of  Claims  against  the  Deceased.  —  The 
power  to  adjudicate  upon  claims  against  deceased  persons  is 
in  most  States  conferred  upon  the  courts  having  control  over 
the  administration  of  their  estates,  either  exclusively,  or  con- 
currently with  other  courts;  but  unless  such  power  is  expressly 
granted,  the  probate  courts  cannot  exercise  it.  A  discussion 
of  the  subject  of  claims  against  estates  is  deferred  to  a  sub- 
sequent chapter. 

§  150.  Incidental  Powers  conferred  by  Necessary  Implication.  — 
The  necessity  of  recognizing  power  in  the  probate  courts  to 
carry  out  the  functions  expressly  pointed  out  for  them,  and 
to  accomplish  the  express  purposes  for  which  they  are  created, 
has  already  been  mentioned. 

§  151.  Power  to  construe  Wills  in  Probate  Court.  —  The 
jurisdiction  of  probate  courts  over  the  estates  of  deceased  per- 
sons necessarily  includes  the  power  in  the  first  instance  to  con- 
strue wills,  whenever  such  construction  is  involved  in  the 
settlement  and  distribution  of  the  estate  of  a  testator.  It  is 
obvious  that  distribution  cannot  be  made  nor  legacies  ordered 
to  be  paid,  unless  the  rights  of  legatees  are  first  adjudicated; 
and  such  adjudication  involves  the  ascertainment  of  the  testa- 
tor's intention,  in  order  to  fix  the  rights  of  legatees  in  accord- 
ance therewith,  and  whether  a  bequest  is  vaHd  or  void,  or 
adeemed.  It  is  the  decree  of  distribution  that  determines  the 
rights  of  legatees  and  distributees;  hence  such  order  or  decree 
is  conclusive  as  to  the  rights  of  heirs,  legatees,  and  devisees 
^  Woemer  on  Administration,  §§  153  and  356. 


124  THE  L.'^W  or  DECEDENTS'   ESTATES.  [§  152 

subject  only  to  be  set  aside  or  modified  on  appeal.^  It  may  be 
here  observed  that  this  power  to  construe  wills  is  given,  how- 
ever, only  to  the  extent  of  determining  to  whom  the  executor 
must  pay  or  deliver  the  funds  of  the  estate  in  the  first  instance 
and  does  not  extend  to  the  determination  of  questions  between 
legatees  themselves,  such  as  whether  the  legacy  is  absolute  or 
for  life  only,  or  subject  to  trusts  or  conditions. 

§  152.  Construing  Wills  in  Equity.  —  It  may  be  proper  to 
note  in  this  connection  the  power  of  courts  of  equity  in  respect 
of  the  construction  of  wills,  upon  the  application  of  an  execu- 
tor, administrator,  or  other  trustee,  or  even  of  a  cestui  que  trust, 
to  determine  questions  of  doubt  in  carrying  trusts  into  effect. 
The  power  arises  out  of  the  jurisdiction  of  courts  of  equity  to 
decree  the  payment  of  legacies  (because  the  ecclesiastical  courts 
could  neither  take  the  accounts  necessary  sometimes  to  ascer- 
tain the  amount  of  legacies,  nor  enforce  their  decrees),  and  to 
entertain  bills  of  interpleader  (in  cases  of  conflicting  trusts,  to 
save  trustees  from  hazardous  responsibility  and  future  litigation, 
or  of  conflicting  legal  claims  against  one  who  has  no  interest 
in  the  thing  claimed,  but  is  a  mere  stakeholder).  It  is'deduced 
from  the  equity  jurisdiction  given  by  statute  in  cases  of  trust 
arising  in  the  settlement  of  estates,  where  the  trustees  are 
actors  and  seek  the  aid  and  direction  of  a  court  of  equity  in 
cases  of  doubt  and  difficulty,  and  where  conflicting  claims  are 
asserted  by  different  parties  to  the  same  property  or  rights 
under  the  instrument  creating  the  trust;  and  is  expressly  con- 
ferred by  statute  in  some  of  the  States.  Where  equity  juris- 
diction to  construe  wills  is  conferred  upon  the  probate  court, 
it  may  be  applied  to  for  instructions  as  to  the  construction  of  a 
will;  but  the  power  does  not  reside  in  such  courts  unless  ex- 
pressly, or  by  necessary  implication,  conferred,  and  even  when 
it  is,  the  distinction  between  probate  courts  proceeding  as  such, 
and  the  same  courts  when  exercising  statutory  jurisdiction  in 
equity,  is  a  broad  one.  Thus  an  executor,  administrator  c.  t.  a., 
or  any  party  claiming  against  him,  may  apply  to  a  court  of 
equity  to  have  his  rights  in  the  estate  ascertained  and  settled 
in  respect  of  testamentary  trusts  which  may  be  valid  or  invalid; 

1  The  effect  of  the  order  of  distribution  will  be  more  fully  stated  in 
connection  with  that  subject:  post,  §§  558-559. 


§  153]  SUBJECT-MATTER   OF   JURISDICTION.  125 

for  the  executor  holds  the  property  in  trust  for  the  persons  to 
whom  it  is  legally  bequeathed,  and  for  those  who  are  entitled 
to  it  under  the  Statute  of  Distributions  if  not  effectually  dis- 
posed of  by  the  will.  Where  the  application  is  made  by  an 
executor  in  good  faith,  under  circumstances  creating  a  doubt 
as  to  the  intention  of  the  testator  or  the  rights  of  legatees  or 
heirs,  the  costs  are  payable  out  of  the  estate;  not  so,  however, 
where  the  proceeding  was  unnecessary  or  frivolous,  in  which 
case  the  party  causing  it  must  bear  the  costs. 

§  153.  Exclusive  and  Concurrent  Jurisdiction.  —  The  jurisdic- 
tion exercised  by  probate  courts  in  the  matter  of  admitting 
wills  to  probate,  appointing  administrators,  and  taking  adminis- 
tration bonds,  is  exclusive  of  all  other  courts  or  tribunals  in  all 
the  States.  Other  matters  committed  to  their  jurisdiction  are, 
generally,  within  their  exclusive  original  jurisdiction,  any  party 
interested  having,  in  most  States,  a  right  to  appeal  and  have  a 
trial  de  novo  in  the  appellate  court.  From  the  nature  of  the 
jurisdiction  so  conferred,  it  is  evidently  essential  that  the  ad- 
judications upon  the  subject-matter,  not  appealed  from  or 
reversed  in  direct  proceeding,  shall  be  final,  not  only  in  the 
courts  in  which  they  are  pronounced,  but  in  all  other  courts 
where  the  same  question  arises.  Hence  a  superior  court  has  no 
power,  in  the  exercise  of  its  chancery  jurisdiction,  to  set  aside 
a  will  which  has  been  admitted  to  probate,  or  to  remove  an 
executor,  enjoin  a  will  from  being  probated,  or  to  control  an 
administrator  in  the  discharge  of  the  ordinary  duties  of  his 
office,  while  the  administration  is  pending  in  the  probate 
court,  or  to  subject  the  lands  of  heirs  to  the  payment  of  debts 
of  the  ancestor,  if  the  creditors  have  failed  to  present  their 
claims  for  allowance  in  the  probate  court;  nor  to  allow  and  en- 
force payment  of  a  claim  against  an  estate;  nor  has  a  common- 
law  court  power  to  try  an  action  purely  probate  in  its  character, 
having  for  its  object  the  recognition  of  heirs,  legatees,  or  dis- 
tributees, and  establishing  their  rights  judicially. 

In  some  States,  courts  of  equity  have  retained  concurrent 
jurisdiction  with  probate  courts  in  some  respects,  chiefly  in 
the  matter  of  compelling  executors  or  administrators  to  ac- 
count. The  general  tendency,  however,  is  to  vest  exclusive 
original  jurisdiction  over  executors,  administrators,  guardians, 


12G  THE  LAW  OF  DECEDENTS'   ESTATES.  [§154 

curators,  etc.,  in  probate  courts,  arming  tliem  with  amprie 
powers,  both  in  the  extent  of  their  jurisdiction  and  their  mode 
of  procedure,  for  the  accompHshment  of  those  purposes  wliich 
could  not  be  attained  in  the  EngHsh  testamentary  courts  and 
rendered  necessary  the  interference  of  equity  courts.  Hence, 
in  this  country,  courts  of  equity  do  not  generally  interfere  in 
the  administration  of  estates,  except  in  aid  of  the  probate 
courts,  where  the  powers  of  these  are  inadequate  to  the  pur- 
poses of  perfect  justice,  and  then  for  the  same  reasons  which 
induce  them  to  interfere  with  tlie  jurisdiction  of  common-law 
courts.  But  where  the  jurisdiction  of  the  probate  court  has 
once  properly  attached,  no  other  court  will  interfere  or  go  behind 
its  judgments  or  decrees,  without  special  and  sufficient  reasons.^ 

§  154.  Probate  Jurisdiction  of  Federal  Courts.  —  The  jurisdic- 
tion of  federal  courts  is  conferred  upon  them  by  the  Constitu- 
tion of  the  United  States,  and  the  laws  of  Congi-ess  in  pursuance 
thereof;  and  where  the  requisites  of  jurisdiction  exist,  this  juris- 
diction cannot  be  ousted  or  annulled  by  statutes  of  the  States, 
though  assuming  to  confer  it  exclusively  on  their  own  courts. 
A  citizen  of  another  State  may,  therefore,  establish  a  debt 
against  the  estate  in  a  federal  court;  or  a  foreign  distributee  may 
establish  in  a  federal  court  his  right  to  a  share  in  the  estate, 
and  enforce  such  adjudication  against  the  administrator  per- 
sonally and  his  sureties,  or  against  any  other  parties  subject  to 
liability,  so  long  as  the  possession  of  the  property  by  the  State 
court  (holding  through  the  administrator)  is  not  interfered 
with.  It  has  even  been  held  that  in  an  exceptional  case  where 
assets  in  an  ancillary  State  are  in  danger  of  being  lost  to  cred- 
itors because  of  non-administration  resulting  from  neglect  and 
litigation,  preventing  protection  by  the  probate  court,  a  Fed- 
eral court,  in  the  exercise  of  its  chancery  jurisdiction,  may 
appoint  a  temporary  receiver  pending  action  by  the  probate 
court,  in  the  State  where  the  assets  are  situated.^ 

But,  as  established  by  the  Supreme  Court  of  the  United 
States  in  an  exhaustive  opinion  delivered  by  Justice  Brewer, 
the  Federal  courts  have  no  original  jurisdiction  with  respect 
to  the  administration  of  the  estates  of  deceased  persons;  they 

1  Woemer  on  Administration,  §  156. 

2  Underground  v.  Owsley,  176  Fed.  (C.  C.  A.)  26. 


§  154]  SUBJECT-IL'^TTER   OF   JURISDICTION.  127 

cannot  draw  to  themselves,  by  reason  of  any  of  the  powers 
enumerated,  the  res,  or  administration  itself;  nor  make  any 
decree  looking  to  the  mere  administration  of  the  estate,  nor 
can  they  in  any  way  distm-b  the  possession  of  the  decedent's 
property  held  by  an  administrator  appointed  by  a  State  court, 
and  thus,  through  him,  dispossess  that  court  of  its  custody.^ 
Hence  the  claims  established  by  a  resident  of  another  State  in 
the  United  States  Court  cannot  be  enforced  by  direct  process 
against  the  decedent's  property,  but  must  take  its  place  and 
share  in  the  estate  as  administered  in  probate  court.  A  non- 
resident who  delays  until  the  period  of  proving  claims  fixed  by 
the  State  statute  has  expired,  the  representative's  final  account 
passed,  and  the  order  of  distribution  made  in  the  probate 
court,  will  be  barred  from  proceeding  to  have  his  claim  allowed 
in  the  Federal  court.^ 

So  also  it  is  fii*mly  established  that  the  Federal  courts  have  no 
jurisdiction  to  grant  original  probate  or  letters.  Such  pro- 
ceeding for  probate  or  contest  of  a  will  in  the  testamentary 
court  (including  a  direct  review  or  continuation  thereof  by  ap- 
peal or  otherwise)  is  in  rem,  and,  not  being  between  parties,  can- 
not be  removed  to  the  Federal  court;  but  yet,  where  such  will 
may  under  the  State  law  be  contested  by  original  proceedings 
in  a  court  of  general  jurisdiction,  and  becomes  an  independent 
action  or  suit  inter  partes  residing  in  different  States,  the  Federal 
courts  take  jurisdiction  as  they  would  in  any  other  controversy 
between  the  parties.^ 

After  a  will  has  been  established  in  a  State  court,  the  Federal 
courts  have  jurisdiction  to  interpret  its  provisions  in  an  action 
between  citizens  of  different  States.  But  it  is  held  that  where 
the  exercise  of  federal  jurisdiction  depends  upon  diverse  citizen- 
ship, it  must  be  confined  to  the  administration  of  the  rights  of 
such  diversely  domiciled  citizens,  and  to  them  alone.* 

1  Byers  v.  McAuley,  149  U.  S.  608. 

2  Security  Trust  Co.  v.  Bank,  187  U.  S.  211,  230. 

3  Farrell  ;;.  O'Brien,  199  U.  S.  89,  110.  " 
*  Security  Co.  v.  Pratt,  65  Conn.  161. 


128  THE  L.\W   OF  DECEDENTS'   ESTATES.         [§§  155,  156 


CHAPTER  XVII. 

DOMICILIARY  AND  ANCILLARY  JURISDICTION. 

§  155.  Authority  of  Representatives  limited  to  the  State  grant- 
ing it.  —  The  property  of  deceased  persons  is  vested  by  law  in 
representatives  who,  for  the  purposes  of  its  devolution,  continue 
the  person  of  the  defunct.  The  authority  of  these  representa- 
tives emanates  from  the  law  of  the  State  or  country  under 
which  they  hold  letters  testamentary  or  of  administration; 
and  since  it  is  universally  recognized  that  the  laws  of  every 
State  affect  and  bind  directly  all  property  within  its  territorial 
limits  and  all  persons  residing  therein,  whether  natural-born 
citizens,  subjects,  or  aliens;  and  that  a  State  may,  therefore, 
regulate  the  manner  and  circumstances  under  which  property 
within  it,  whether  real  or  personal,  shall  be  held,  transmitted, 
and  enforced,  —  it  is  evident  that  no  one  can,  in  a  representa- 
tive capacity,  whether  a  testato  or  ah  intestato,  meddle  or  inter- 
fere with  a  succession  before  probate  of  the  will  or  grant  of 
administration,  or  some  other  formal  induction  into  the  prop- 
erty in  the  forum  of  the  country  or  State  where  it  is  found. 
This  is  the  necessity  of  the  rule,  recognized  in  England  as  well 
as  in  the  Federal  and  State  courts  of  America,  that  letters 
testamentary  and  of  administration  have  no  legal  force  or  effect 
beyond  the  territorial  limits  within  which  the  authority  of  the 
State  or  country  granting  them  is  recognized  as  law. 

§  156.  Administration  of  Same  Succession  in  Different  Coun- 
tries. —  It  follows  from  this  doctrine  that  where  a  person  dying 
leaves  property  in  several  different  jurisdictions,  the  legal  repre- 
sentatives of  such  person  must  derive  their  authority  from  each 
of  as  many  sovereignties  as  may  have  jurisdiction  over  the 
property  so  left,  because  the  territorial  element  of  the  law,  or 
rather  of  the  sovereignty  from  which  the  law  emanates,  permits 
no  other  sovereignty  to  exercise  authority  over  it,  and  each 
therefore  must  itself  create  the  legal  ownership  necessary  in 


§  156]  DOMICILIARY   AXD   ANXILLARY  JURISDICTION.  129 

its  devolution.  This  authority  or  legal  ownership  may  be, 
and  except  in  the  States  in  which  non-residence  disqualifies  a 
person  from  the  office  of  executor  or  administrator  generally 
is,  conferred  upon  the  same  person  in  several  or  all  of  the  States 
in  which  the  deceased  person  left  property;  for  a  testator  may 
appoint  the  same  or  different  executors  in  different  countries, 
and  it  is  held  that  ex  comitate,  and  in  order  to  preserve  as  far  as 
possible  the  singleness  of  administration,  the  person  who  obtains 
administration  as  next  of  kin  in  the  jurisdiction  of  the  intestate's 
domicile,  or  his  appointee,  is  entitled  to  a  similar  grant  in  any 
other  jurisdiction  where  the  deceased  has  personal  estate;  but 
the  administration  in  each  State  is  wholly  independent,  whether 
in  the  hands  of  the  same  or  of  different  executors  or  adminis- 
trators, in  no  wise  impaired,  abridged,  or  affected  by  a  previous, 
and  a  fortiori  by  a  subsequent,  grant  of  administration  in  an- 
other State.^  There  is  no  privity  between  administrators  in 
different  States,  although  there  may  be  between  executors  of 
the  same  testator  in  different  States,^  who,  at  common  law,  are 
said  to  be  in  privity  as  to  the  creditors. 

The  administration  granted  in  the  State  of  the  domicile  of 
the  decedent,  is  the  principal,  primary,  original,  or  chief  ad- 
ministration, because  the  law  of  the  domicile  governs  the  dis- 
tribution of  the  personal  property,  whether  to  heirs,  distributees, 
or  legatees;  while  that  granted  in  any  other  country  is  ancillary 
or  auxiliary.  Both  are  local,  however,  to  the  jurisdiction  in 
which  they  are  granted,  being  limited  to  the  chattels  ha\dng  a 
particular  situs,^  independent  of  each  other,  save  that  the  origin 
and  devolution  of  the  property  in  each  may  be  the  same.  It 
follows  from  this  want  of  privity  that  a  judgment  obtained 
against  one  furnishes  no  cause  of  action  against  another,  so 
as  to  affect  assets  under  the  control  of  the  other.  Nor  will  a 
judgment  in  favor  of  a  foreign  administrator  against  the  debtor 
of  his  intestate  support  an  action  against  the  debtor  by  an  ad- 
ministrator in  another  State.  But  a  question  determined  by 
the  courts  of  a  sister  State,  so  as  to  become  res  judicata  between 

1  Brow-n  v.  Fletcher,  210  U.  S.  82. 

2  This  is  not  true  in  those  States,  now  comprising  the  larger  number, 
where  the  authority  of  the  executor  is  deduced  like  that  of  the  adminis- 
trator from  his  appointment  by  the  court. 

3  Overby  v.  Gordon,  177  U.  S.  214. 


130  THE   LAV,'   OF  DECEDENTS'   ESTATES.  [§  157 

the  parties,  cannot  be  reopened  by  the  same  parties  in  another 
State.^  Hence,  where  the  domicihary  court,  having  jurisdic- 
tion to  construe  a  will,  adjudicates  thereon,  such  adjudication 
is  binding  upon  the  courts  of  other  States;  but  this  doctrine 
must  not  be  understood  as  going  to  the  extent  of  depriving  the 
courts  of  a  State  in  which  lands  lie  from  construing  the  will  as 
to  such  realty  within  its  jurisdiction.  A  decree  of  distribution 
obtained  in  one  State  cannot  be  attacked  on  the  ground  of 
fraud  and  mistake  in  another  State.  A  judgment  on  final 
accounting  in  one  State,  or  the  disallowance  of  a  claim,  is  a 
judicial  proceeding  entitled  to  full  faith  and  credit  in  the  courts 
of  another  State,  under  the  Constitution  and  acts  of  Congress. 
But  this  constitutional  provision  does  not  give  a  judgment  or 
proceeding  any  greater  force  and  efficacy  than  it  has  in  the 
State  where  had,  nor  does  it  preclude  inquiry  into  the  jurisdic- 
tion of  the  court  in  which  the  judgment  is  rendered,  over  the 
subject  matter,  or  the  parties  affected  by  it,  or  into  the  facts 
necessary  to  give  such  jurisdiction;^  and  it  is  held  that  the 
bare  appointment  of  an  administrator  in  one  State  cannot  fore- 
close inquiry  into  the  fact  of  the  domicile  of  the  decedent  in 
the  courts  of  another  sovereignty,  nor  has  the  Probate  Court 
of  one  State  power  to  conclusively  bind  all  the  world  as  to  the 
fact  of  the  decedent's  domicile  there  by  finding  such  to  be  a 
fact  in  a  proceeding  iji  rem  in  granting  letters,^  or  admitting 
wills  to  probate. 

§  157.  Jurisdiction  over  Property  removed  to  Another  Country 
after  Owner's  Death.  —  But  it  may  be  that  the  situs  of  property 
is  changed  after  the  death  of  the  owner,  and  before  any  admin- 
istrator reduces  it  into  possession.  In  such  case,  since  every 
administration  operates  on  such  property  of  the  deceased  as  is 
at  the  time  of  the  grant,  or  shall  be  at  any  time  diu-ing  its  ex- 
istence, within  the  jurisdiction  of  the  court  granting  the  same, 
the  question  determining  the  jurisdiction  is  whether  there  is 
or  is  not  any  vacancy  in  the  legal  title  to  the  property  where 
and  when  found.  For  if  goods  are  once  in  the  legal  possession 
of  an  administrator  duly  appointed,  they  cannot  afterward  be 

»  Carpenter  v.  Strange,  141  U.  S.  87. 

2  Thormann  v.  Frame,  170  U.  S.  350,  356. 

3  Overby  v.  Gordon,  177  U.  S.  214. 


§  15S]  DOMICILIARY  AND   ANCILLARY  JURISDICTION.  131 

affected  by  an  administration  granted  in  another  jurisdiction 
to  which  they  may  be  removed,  because  there  is  then  no  va- 
cancy in  the  legal  ownership;  they  are,  technically,  no  longer 
the  goods  of  the  deceased,  but  of  the  administrator  of  the  juris- 
diction from  which  they  were  removed.  But  if  the  goods  have 
never  been  in  the  possession  of  the  administrator,  although 
they  be  removed  from  the  jurisdiction  where  he  might,  but  did 
not,  take  possession  of  them,  an  administrator  of  the  jurisdiction 
to  which  they  are  taken  may  do  so,  without  regard  to  priority 
in  the  grant  of  the  respective  administration.  Thus,  where 
stage-coaches  and  stage-horses  belonged  to  a  line  running  from 
one  State  to  another,  it  was  said  that,  if  there  had  been  different 
administrators  in  the  two  States,  "  the  property  must  have  been 
considered  as  belonging  to  that  administrator  who  fu-st  reduced 
it  into  possession  within  the  limits  of  his  own  State."  ^  So,  also, 
ships  and  cargoes,  and  the  proceeds  thereof,  may  be  situated 
in  a  foreign  country  at  the  time  of  the  owaier's  death ;  but  since 
they  proceed  according  to  their  usage,  on  their  voyages  and 
return  to  the  home  port  they  are  properly  taken  possession  of 
and  administered  by  the  administrator  of  the  forum  domicilii? 
§  158.  Legal  Status  of  Foreign  Administrators.  —  No  executor 
or  administrator  can,  in  his  official  capacity,  originate  or  main- 
tain an  action  in  the  courts  of  any  country,  save  that  which  has 
granted  him  letters  testamentary  or  of  administration,  AA^thout 
authority  from  the  country  in  which  he  brings  the  action;  nor 
collect  rents,  or  in  any  manner  intermeddle  with  the  property 
of  the  deceased  in  such  country.  The  strict  correlative  of  this 
proposition  is,  that  no  executor  or  administrator  can  be  sub- 
jected to  an  action,  in  his  official  capacity,  in  the  State  or  coun- 
try in  which  he  is  not  recognized  as  such;  nor  is  he  accountable 
except  in  the  forum  from  which  he  obtained  his  authority,  for 
assets  collected  in  a  foreign  State  by  virtue  of  his  office.  By 
the  comity  of  States  the  authority  of  domiciliary  administrators 
is  recognized  in  different  jurisdictions  to  a  greater  or  less  ex- 
tent; and  it  is  a  matter  concerning  which  the  authorities  differ, 
whether  an  administrator  is  guilty  of  laches  or  negligence  in 
faihng  to  collect  assets  beyond  the  jurisdiction  of  his  forum, 

1  Orcutt  V.  Orms,  3  Paige  459,  465. 

2  See  Woemer  on  Administration,  §  159  and  authorities. 


132  THE  LAW  OF  DECEDENTS'  ESTATES.        [§§  159,  160 

or  obtaining  letters  in  a  foreign  jurisdiction  in  which  there  may 
be  property  belonging  to  the  estate.  If  he  collect  such  property 
in  a  foreign  jurisdiction  without  authority,  either  under  his 
domiciliary  letters,  or  by  new  letters  there  obtained,  he  is 
liable  to  be  sued  in  the  courts  of  the  foreign  State,  as  one  un- 
la^^-fully  intermeddling  with  the  eflFects,  by  any  creditor  or 
other  person  interested.^ 

§  159.  Validity  of  Voluntary  Payment  to  Foreign  Administrator. 
—  Upon  the  question  of  the  validity  of  the  voluntary  payment 
of  a  debt  to  a  foreign  executor  or  administrator,  the  authori- 
ties are  not  unanimous.  The  tendency  is,  however,  in  the  di- 
rection of  recognizing  the  validity  of  such  payments,  when  not 
conflicting  with  the  home  administration.  Chancellor  Kent  so 
ruled,2  and  it  is  so  held  in  many  states,  and  in  the  Supreme 
Court  of  the  United  States.^  Some  decisions  limit  their  sanction 
to  the  validity  of  the  payment  when  made  in  the  decedent's 
domicile,  refusing  to  decide  one  way  or  the  other  that  the  pay- 
ment would  have  been  valid  if  made  to  the  foreign  administrator 
of  the  decedent  in  the  debtor's  domicile.  On  the  other  hand,  it 
is  held  in  other  States  directly  and  unqualifiedly  that  payment 
to  a  foreign  executor  or  administrator  is  void,  and  no  defence 
to  the  demand  of  an  administrator  duly  appointed  in  the  State 
of  the  debtor's  domicile.  On  principle,  it  would  seem  to  result 
from  the  limitation  of  the  validity  of  letters  testamentary 
and  of  administration  to  the  State  or  country  granting  them, 
that  foreign  executors  and  administrators  can  bind  the  estate 
of  a  decedent  to  the  extent  only  to  which  the  law  under  author- 
ity of  which  they  act  is  recognized  by  the  comity  of  the  State 
in  which  the  property  ma}'  be  found;  and  such  comity  may  be 
expressed  by  act  of  its  legislature,  or  the  decisions  of  its  courts. 
Hence  a  voluntary  payment  to  a  foreign  executor  or  adminis- 
trator, unless  authorized  by  such  comity,  is  void,  and  no  de- 
fence against  the  claim  of  an  administrator  of  the  State  where 
the  debtor  or  property  is  found;  but  will  be  good  where  it  does 
not  conflict  with  such  administration. 

§  160.    Extra-territorial  Validity  of  Title  once  vested.  —  "WTiere 

*  Woemer  on  Administration,  §  160. 

2  Doolittle  V.  Lewis,  7  John.  Ch.  45,  49. 

3  Wilkins  i-.  Ellett,  9  WaU.  740,  742;  Wyman  v.  Halstead,  109  U.  S.  654. 


§  160]         DOMICILIARY  AND  ANCILLARY  JURISDICTION.  133 

the  legal  title  to  the  intestate's  or  testator's  chattels  has  been 
fully  vested  in  the  executor  or  administrator,  it  is  obvious  that 
he  may  remove  them,  or  follow  them  into  a  foreign  jurisdiction 
without  forfeiting  or  losing  this  ownership,  for  "the  title  to 
personal  property  duly  acquired  by  the  lex  loci  rei  sites  will  be 
deemed  valid  and  be  respected  as  a  la^\'ful  and  perfect  title  in 
every  other  country."  ^    Hence  he  and  his  assignee  or  vendee 
may  sue  for  and  recover  them  in  a  foreign  jurisdiction  without 
a  grant  of  new  administration  there.     Upon  this  principle,  a 
foreign  executor  or  administrator  may  maintain  an  action  on  a 
judgment  recovered  against  the  debtor  in  another  State,  for 
such  suit  need  not  be  brought  in  the  representative  capacity 
of  the  plaintiff,  as  well  as  on  a  contract  made  by  the  defendant 
with  the  foreign  executor  or  administrator  personally.    Where 
the  foreign  executor  can  sue  upon  such  a  contract  he  may  be 
sued  upon  it;  the  remedy  must  run  to  either  party  or  neither .^ 
So  an  executor  may  maintain  an  action  for  lands  devised  to  him 
in  another  State,  without  qualifying  in  such  State  as  executor, 
because  in  such  case  he  may  sue  as  de\dsee,  and  the  executor 
or  administrator  holding  a  note  indorsed  in  blank  or  payable  to 
bearer  may  sue  thereon,  as  indorsee  or  owner;  and  a  fortiori  as 
payee,  where  the  note  is  given  or  payable  to  him  in  person;  for 
in  such  case  the  full  legal  title  is  in  the  personal  representative, 
and  the  addition  of  his  official  capacity  mere  description  of  the 
person.    For  the  same  reason,  the  assignee  of  a  chose  in  action 
assigned  by  a  foreign  executor  or  administrator  may  maintain 
an  action  on  the  chose  transferred,  although  the  assignor  could 
not  bring  such  suit  himself,  on  the  ground  that  the  disability 
of  the  foreign  executor  or  administrator  to  sue  does  not  attach 
to  the  subject  of  the  action,  but  to  the  person  of  the  plaintiff. 
But  this  is  true  only  in  cases  where  the  title  to  the  chose  has 
fully  attached,  and  may  be  asserted  without  trenching  ujwn  the 
authority  of  the  forum  rei  sites;  where,  for  instance,  the  prop- 
erty of  an  executor  or  administrator  is  wrongfully  removed 
into  another  State,  or  where  such  property  is  removed  after 
due  administration  thereon.    In  such  case  the  title  of  the  owner 
is  not  affected  by  any  question  of  administration,  and  is  as  full 

1  Story  Conflict  of  Laws,  §  516. 

2  Johnson  v.  Wallis,  112  N.  Y.  230,  232. 


134  THE   LAW   OF  DECEDENTS'   ESTATES.         [§§  161,  162 

as  that  of  any  owTier  sui  juris.  In  general,  however,  simple 
contract  debts  are  bona  notahilia  in  the  State  where  the  debtor 
resides,  and  neither  an  administrator  appointed  in  a  foreign 
State,  nor  the  assignee  of  such,  can  control  or  release  them. 

§  161.  Statutory  Authority  of  Foreign  Executors  and  Adminis- 
trators. —  Statutory  provisions  of  many  of  the  States  enable 
foreign  executors  and  administrators,  under  such  conditions 
and  restrictions  as  may  be  imposed,  to  assign,  transfer,  collect, 
and  sue  for  the  property  of  their  testators  and  intestates  found 
within  the  jurisdiction  of  such  States.^  It  follows  from  this 
authority  of  foreign  executors  and  administrators,  that  the 
Statute  of  Limitations  runs  against  them  just  as  though  they 
had  been  appointed  in  such  States.  In  some  of  the  States  the 
foreign  executor  or  administrator  is  permitted  to  act,  but  must 
first  qualify  according  to  the  laws  of  such  State,  or  file  his  letters 
testamentary  or  of  administration  in  the  county  where  he  brings 
suit.    For  further  detail  reference  must  be  had  to  the  statutes. 

§  162.  Liability  of  Foreign  Administrators.  —  The  principle 
that  executors  and  administrators  are  not  liable  to  actions  as 
such  in  States  where  they  have  obtained  no  letters  is  not  per- 
mitted to  protect  them  against  the  consequences  of  their  own 
wrong  or  default.  Thus,  where  an  executor  or  administrator 
removes  the  property  of  the  estate  in  his  charge,  without  hav- 
ing completed  the  administration,  to  another  State,  and  fails 
to  obtain  new  letters  of  administration  there,  a  court  of  equity 
will  grant  relief  to  any  person  whose  interest  is  thereby  jeop- 
arded, on  the  ground  that,  where  a  trust  fund  is  in  danger  of 
being  wasted  or  misapplied,  the  court  of  chancery,  on  the  ap- 
plication of  those  interested,  will  interfere  to  protect  the  fund 
from  loss.  The  exercise  of  this  authority  is  in  no  way  incon- 
sistent \\ith  the  general  principle  announced  as  governing  the 
powers  and  liabilities  of  executors  and  administrators,  who,  as 
such,  derive  their  powers  from,  and  are  amenable  only  to,  the 
forum  of  the  State  under  whose  laws  they  hold  their  office. 
They  are  in  such  proceeding  treated,  not  in  their  official  capac- 
ity which  is  co-extensive  only  with  the  State  in  which  they  re- 
ceived their  appointment,  but  as  persons  who,  by  withdrawing 
themselves  from  the  jurisdiction  of  the  court  ha\'ing  power  over 
1  Woemer  on  Administration,  §  163. 


§§  163,  164]   DOMICILIARY  AND  ANCILLARY  JURISDICTION.         135 

them,  are  unlawfully  in  possession  of  the  property  which  is  to 
be  protected,  or  adjudged  to  its  lawful  owner. 

It  may  be  stated,  however,  as  a  general  proposition,  that  the 
liability  of  an  administrator  for  property  fraudulently,  or 
without  ha\dng  been  fully  administered,  brought  from  the 
State  in  which  he  received  his  appointment  to  another  State, 
is  to  the  creditors  and  distributees  alone,  and  does  not  author- 
ize the  grant  of  letters  in  the  latter  State. 

§  163.  Procedure  governed  by  the  Law  of  the  Forum.  —  Al- 
though the  law  of  the  domicile  of  the  decedent  governs  the 
devolution  of  personal  property  to  heirs  and  legatees,  yet  it 
follows  from  the  exclusive  authority  of  each  nation  over  the 
property  and  persons  within  its  jurisdiction,  that  the  mode  of 
administration,  including  the  method  of  pro\ing  debts,  their 
right  to  priority  of  pajment,  and  the  marshalling  of  assets  for 
this  purpose,  is  governed  altogether  by  the  law  of  the  country 
in  which  the  executor  or  administrator  acts,  entirely  independ- 
ent of  that  in  the  domicile  of  the  decedent,  or  in  any  other 
State.  Thus  in  Smith  v.  Bank  the  deceased  owed  in  his  domicile, 
Virginia,  on  a  bond.  In  Virginia  the  debt  would  be  preferred. 
There  was  ancillary  administration  in  the  District  of  Columbia 
and  there  the  debt  on  bond  was  not  a  preferred  one,  but  w^as  of 
equal  dignity  with  general  debts.  Accordingly  the  bond  was 
not  entitled  to  preference  in  administration  of  the  assets  in  the 
District.^ 

§  164.  Payment  of  Debts  and  Distribution  to  Non-Residents.  — 
From  these  principles  it  results  that  the  administration  of  the 
assets  of  a  deceased  person  is  conducted  according  to  the  laws 
of  the  State  in  which  they  may  be  found,  and  applied  first  to 
the  pajTnent  of  the  expenses  of  administration,  and  such  debts 
as  may  be  proved  against  the  estate  by  creditors  residing  there; 
and  if  there  be  legatees  or  heirs  there  also,  their  claims  will  be 
determined  according  to  the  law  of  the  decedent's  domicile, 
and  distributed  to  them.  The  residue  may  then  be  remitted 
from  the  ancillary  to  the  domiciliary  executor  or  administrator. 
But  it  is  not  obligatory  upon  courts  to  transfer  the  assets  to  the 
domicile  for  distribution;  in  their  judicial  discretion,  to  be 
guided  by  the  circumstances  of  each  particular  case,  they  may 

1  5  Peters  518. 


136  THE  LAW  OF  DECEDENTS'   ESTATES.  [§  164 

be  thus  remitted,  or  ordered  to  be  distributed  by  the  ancillary 
administrator  to  the  parties  in  interest  seeking  their  remedy 
there. 

Where  the  estate  administered  on  in  more  than  one  State 
or  country  is  fully  solvent,  the  rule  referred  to  is  of  easy  appli- 
cation, and  there  seems  to  be  no  occasion  to  doubt  the  correct- 
ness of  the  principle.    " For,"  says  Parker,  C.  J.,  of  the  Supreme 
Judicial  Court  of  Massachusetts,  "it  would  be  but  an  idle  show 
of  courtesy  to  order  the  proceeds  of  an  estate  to  be  sent  to  a 
foreign  countr}',  the  province  of  Bengal,  for  instance,  and 
oblige  our  citizens  to  go  or  send  there  for  their  debts,  when  no 
possible  prejudice  could  arise  to  the  estate,  or  those  interested 
in  it,  by  causing  them  to  be  paid  here;  and  possibly  the  same 
remark  may  be  applicable  to  legacies  payable  to  legatees  living 
here,  unless  the  circumstances  of  the  estate  should  require  the 
funds  to  be  sent  abroad."  ^    But  with  reference  to  effects  col- 
lected by  an  ancillary  administrator  of  an  insolvent  estate  the 
question  is  more  difficult.    "We  cannot  think,  however,"  says 
the  same  learned  judge,  "that  in  any  civilized  country  advan- 
tage ought  to  be  taken  of  the  accidental  circumstance  of  jjro])- 
erty  being  found  within  its  territory,  which  may  be  reduced  to 
possession  by  the  aid  of  its  courts  and  laws,  to  sequester  the 
whole  for  the  use  of  its  own  subjects  or  citizens,  where  it  shall 
be  known  that  all  the  estate  and  effects  of  the  deceased  are 
insufficient  to  pay  his  just  debts.  .  .  .  Creditors  of  all  coun- 
tries have  the  same  right  as  our  citizens  to  prove  their  claims 
and  share  in  the  distribution."  2    But  to  send  the  effects  of  an 
insolvent  estate  to  the  domiciliary  administrator,  to  be  there  re- 
apportioned among  all  the  creditors  according  to  the  laws  of 
the  State  of  the  domicile  would  work  equal  injustice  and  greater 
inconvenience  to  the  creditors  in  the  State  of  the  ancillary 
administration,  "whose  debts  might  not  be  large  enough  to 
bear  the  expense  of  proving  and  collecting  them  abroad;  and 
in  countries  where  there  is  no  provision  for  equal  distribution, 
the  pm-suit  of  them  might  be  wholly  fruitless.     As  in  Great 
Britain,  our  citizens,  whose  debts  would  generally  be  upon 
simple  contracts,  would  be  postponed  to  creditors  by  judgment, 

1  Dawes  v.  Head,  3  Pick.  128,  144. 

2  Ihid. 


§  1G5]  DOMICILIARY   AND   ANCILLARY  JURISDICTION.  137 

bond,  etc.,  and  even  to  other  debts  upon  simple  contract  which 
might  be  preferred  by  the  executor  or  administrator.  It  would 
seem  too  great  a  stretch  of  courtesy  to  require  the  effects  to  be 
sent  home,  and  our  citizens  to  pursue  them  under  such  disad- 
vantages." ^  To  avoid  the  injustice  and  inconvenience  attend- 
ant upon  either  course,  Chief  Justice  Parker  suggested  the  rule, 
now  adopted  by  courts  in  some  States  and  in  some  enacted  by 
statute,  to  retain  the  funds  in  the  State  of  the  ancillary  admin- 
istration for  a  jiro  rata  distribution  according  to  the  laws  thereof 
among  its  citizens,  having  regard  to  all  the  assets  in  the  hands 
of  the  principal  as  well  as  of  the  auxiliary  administrator,  and 
also  to  all  of  the  debts  which  by  the  laws  of  either  country  are 
payable  out  of  the  decedent's  estate,  without  regard  to  any 
preference  which  may  be  given  to  one  species  of  debt  over 
another,  considering  the  funds  in  each  State  as  applicable, 
first,  to  the  payment  of  the  just  proportion  due  to  its  citizens, 
and,  if  there  be  any  residue,  that  should  be  remitted  to  the 
principal  administrator,  to  be  dealt  with  according  to  the  laws 
of  his  country. 

Non-resident  creditors  of  an  insolvent  estate  may,  in  some 
States,  prove  their  claims  against  the  ancillary  administration, 
and  subject  the  real  estate  of  the  intestate  to  their  payment, 
without  showing  that  the  personal  property  of  the  estate  in 
the  State  of  the  domicile  has  been  exhausted.  A  fortiori  may 
resident  creditors  do  this  in  case  of  a  solvent  estate. 

§  165.  Real  Estate  governed  by  the  Lex  Rei  Sitae.  —  It  is  a 
rule  conditioned  by  imperative  necessity,  that  immovable 
property  should  be  governed,  especialh'  in  respect  of  its  trans- 
mission, by  the  law^  of  the  country  in  which  it  is  situated.  For 
this  reason  the  execution  and  probate  of  a  will  must  conform 
strictly  to  the  law  of  the  State  in  which  land  is  therein  devised, 
and  this  law  is  also  to  govern  as  to  the  capacity  of  the  testator 
and  the  extent  of  his  power  to  dispose  of  the  property.  So 
the  descent  and  heirship  of  real  estate  are  exclusively  governed 
by  the  law  of  the  country  within  which  it  is  actually  situate. 
No  person  can  take,  except  those  who  are  recognized  as  legiti- 
mate heirs  by  the  laws  of  that  country;  and  they  take  in  the 
proportions  and  in  the  order  which  these  laws  prescribe.    All 

1  Dawes  v.  Head,  3  Pick.  128,  144. 


138  THE   LAW  OF  DECEDENTS'  ESTATES.  [§  165 

the  authorities,  both  in  England  and  America,  so  far  as  they 
go,  recognize  the  principle  in  its  fullest  import,  that  real  estate, 
or  immovable  property,  is  exclusively  subject  to  the  laws  of 
the  country  within  whose  territory  it  is  situate.  The  reason 
of  the  rule  includes  leasehold  and  chattel  interests  in  land, 
servitudes,  and  easements,  and  other  charges  on  lands,  as  mort- 
gages and  rents,  and  trust  estates;  all  of  these  are  deemed  to 
be,  in  the  sense  of  the  law,  immovables  and  governed  by  the 
lex  rei  sites.  And  as  to  what  constitutes  immovable  or  real 
property  resort  must  also  be  had  to  the  lex  loci  rei  sites. 


§§166,  167]  NATURE  OF  TITLE  VESTING  IN  REPRESENTATIVE.    139 


PART    II. 
OF  THE  OFFICE    OF    EXECUTORS    AND   ADMINISTRATORS. 

CHAPTER  XVIII. 

NATURE    OF   THE    TITLE    VESTING    IN    EXECUTORS    AND 
ADMINISTRATORS. 

§  166.  Conduit  of  the  Inheritance.  —  In  England  and  the 
United  States  the  real  estate  descends  to  the  heirs  and  devisees, 
subject  to  the  power  of  the  executor  or  administrator  to  convert 
the  same  into  personalty  for  the  payment  of  the  decedent's 
debts;  the  real  or  personal  property  set  apart  for  the  widow  and 
minor  children  goes  to  them  absolutely,  and  the  personal  prop- 
erty goes  to  the  executor  or  administrator  to  be  distributed, 
after  payment  of  debts,  to  legatees  or  next  of  kin.  It  will  now 
be  proper  to  inquire  into  the  nature  and  extent  of  the  authority 
conferred  upon  the  officers  employed  by  the  law  to  give  effect 
to  the  will  of  a  decedent  in  respect  of  his  property,  and  whose 
function  it  is  to  personate  the  deceased  in  all  matters  touching 
the  posthumous  disposition  of  his  affairs. 

§  167.  Distinction  between  Executors  and  Administrators.  — 
The  functions,  powers,  liabilities,  rights,  and  duties  of  execu- 
tors are  in  most  respects  identical  with  those  of  administrators. 
But  however  great  the  similarity  between  the  two  offices  may  be, 
there  are  some  essential  distinctions  which  cannot  be  ignored  or 
abolished  even  by  legislation,  without  a  change  in  the  law  of 
administration  so  radical  as  to  be  improbable,  at  least  for  many 
years  to  come. 

The  decisive  difference  between  them  arises  out  of  the  method 
of  their  appointment;  executors  represent  their  testators  by 
virtue  of  the  act  of  the  testator  himself,  while  the  authority  of 
the  administrator  is  derived  exclusively  from  the  appointment 
by  some  competent  court.  An  executor  can  derive  his  office 
from  a  testamentary  appointment  only;  the  administrator,  on 


1  10  THE   LAW   OF  DECEDENTS'   ESTATES.  (§168 

the  other  hand,  derives  his  authority  wholly  from  the  probate 
court;  he  has  none  until  letters  of  administration  are  granted. 
From  this  distinction  important  questions  frequently  arise  with 
regard  to  the  time  when  the  authority  or  liability  of  the  one  or 
other  originated,  which  will  be  more  fully  considered  hereafter. 

An  important  distinction  exists  also  in  respect  of  the  power 
to  hold,  manage,  and  alienate  the  property  of  the  deceased; 
the  authority  of  the  administrator  is  commensurate  with  the 
provisions  of  the  law  on  the  subject,  as  existing  and  recognized 
in  the  forum  of  his  appointment;  but  the  will  of  the  testator  is 
in  itself  a  law  to  the  executor,  which  may  enlarge  or  circum- 
scribe the  authority  or  discretion  which  an  administrator  would 
have,  and  which,  to  the  extent  in  which  it  is  not  repugnant  to 
the  law  of  the  State,  he  must  strictly  observe. 

§  168.  When  the  Title  vests  in  the  Executor,  and  when  in  the 
Administrator.  —  An  executor  is  a  person  appointed  by  a  testa- 
tor to  carry  out  the  directions  and  requests  in  his  will,  and  to 
dispose  of  the  property  according  to  his  testamentary  provisions 
after  his  decease.  As  his  interest  in  the  estate  of  the  deceased 
is  derived  from  the  will,  it  \^ests,  according  to  the  common  law, 
from  the  moment  of  the  testator's  death.  The  will  becomes 
operati\'e,  including  the  appointment  of  the  executor,  not  by 
the  probate  thereof,  nor  by  the  act  of  the  executor  in  qualif}ung, 
v.hich  are  said  to  be  mere  ceremonies  of  authentification,  but 
by  the  death  of  the  testator.  On  the  other  hand,  an  adminis- 
trator is  one  to  whom  the  goods  and  effects  of  a  person  djang 
intestate,  or  wathout  appointing  an  executor  who  survives  and 
accepts  the  office,  are  committed  by  the  probate  court.  De- 
riving his  authority  wholly  from  his  appointment  by  the  court, 
his  title  to  the  property  of  the  deceased  vests  in  him  only  from 
the  time  of  the  grant. 

In  respect  of  executors,  however,  the  common  law  has  been 
materially  modified  in  many  of  the  States,  and  the  doctrine 
that  their  powers  are  conferred  directly  by  the  will  is  mostly 
repudiated.  "  The  fact  that  one  is  named  in  the  will  as  executor 
does  not,  as  at  common  law,  make  him  executor  in  fact,  but 
only  gives  him  the  right  to  become  executor  upon  complying 
with  the  conditions  required  by  law."  ^     "At  death,  a  man's 

1  Stagg  V.  Green,  47  Mo.  500,  501. 


§  169]      NATURE   OF  TITLE   VESTING   IN   REPRESENTATIVE.        141 

property  really  passes  into  the  hands  of  the  law  for  administra- 
tion, as  much  when  he  dies  testate  as  when  he  dies  intestate; 
except  that,  in  the  former  case,  he  fixes  the  law  of  its  distribution 
after  payment  of  his  debts,  and  usually  appoints  the  persons 
who  are  to  execute  his  will  But  even  this  appointment  is  only 
provisional,  and  requires  to  be  approved  by  the  law  before  it 
is  complete;  and  therefore  the  title  to  the  office  of  executor  is 
derived  rather  from  the  law  than  the  will."  ^  ]Most  States 
announce  this  doctrine.^ 

§  169.  Relation  of  the  Appointment  to  the  Time  of  Death.  — 
For  particular  purposes  the  letters  of  achninistration  relate 
back  to  the  time  of  the  death  of  the  intestate,  and  vest  the 
property  in  the  administrator  from  that  time.  On  this  principle, 
an  administrator  may  maintain  trespass  for  injiu-ies  to  the  goods 
of  the  intestate  committed  after  his  death  and  before  the  ap- 
pointment; or  trover  for  property  so  wrongfully  detained;  or 
an  action  on  a  contract  made  with  the  defendant  before  ap- 
pointment; or  for  money  belonging  to  the  estate  collected  by 
defendant  before  grant  of  letters;  or  assumpsit  for  money  paid 
to  defendant's  order.  "This  doctrine  of  relation  is  a  fiction  of 
law  to  prevent  injustice,  and  the  occurrence  of  injuries  where 
othen\ase  there  would  be  no  remedy;  and  would  not  be  applied 
in  cases  where  the  rights  of  innocent  parties  intervened;"  nor 
"to  recognize,  validate,  and  bind  the  estate  by  the  unauthorized 
acts  which  have  been  done  to  the  prejudice  of  the  estate,  by  any 
one,  while  the  title  was  in  abeyance;"  ^  nor  to  give  effect  to  the 
Statute  of  Limitation,  which  in  some  States  does  not  run  dur- 
ing the  period  intervening  between  the  death  of  the  intestate 
and  the  grant  of  letters.  The  principle  is  applicable,  a  fortiori, 
to  executors  in  all  of  the  States  in  which  they  are  required 
to  give  bond  before  induction  into  office,  or  where,  for  any 
reason,  the  common-law  rule,  according  to  which  they  derive 
their  authority  from  the  testator,  and  not  from  the  coiu-t,  is 
modified  by  statute.  A  conveyance  under  a  power  of  sale  in  a 
will,  before  probate  of  such  will,  by  one  nominated  as  executor, 
will  be  validated  by  a  subsequent  probate  of  the  will.^ 

^  Schoenberger  v.  Lancaster,  28  Pa.  St.  459,  466. 

2  Woemer  on  Administration,  §  172. 

3  Gilkey  v.  Hamilton,  22  Mich.  283. 
*  Woemer  on  Administration,  §  173. 


142  THE  LAW  OF  DECEDENTS'  ESTATES.         [§§  170,  171 

§  170.  Title  of  Executors  and  Administrators  in  Atiter  Droit.  — 
The  interest  which  an  executor  or  administrator  has  in  the  es- 
tate of  the  deceased  is  in  aider  droit  merely:  he  is  the  minister 
or  dispenser  of  the  goods  of  the  dead.  Since  the  property  is  not 
his  own,  it  follows  that  he  may  maintain  an  action  therefor 
in  aider  droit,  although  he  himself  be  disabled  from  suing 
proprio  jure;  and  any  one  claiming  the  same  under  a  title  from 
him  in  his  private  or  personal  capacity  must  show  that  he  has 
ceased  to  hold  it  in  a  representative  capacity.  If  the  executor 
or  administrator  become  banlo-upt,  having  property  in  posses- 
sion of  his  testator  or  intestate  distinguishable  from  his  own, 
it  is  not  liable  to  the  bankrupt's  creditors,  though  it  should  be 
money;  nor  can  the  property  so  distinguishable  be  seized  in 
execution  of  a  judgment  against  the  executor  or  administra- 
tor in  his  own  right.  Since  an  administrator  stands  in  the 
relation  of  trustee  to  all  those  interested  in  the  estate,  property 
misapplied  by  him  and  converted  into  other  property,  or  sold 
and  the  proceeds  thus  misapplied  can,  in  his  hands,  be  followed, 
wherever  it  can  be  traced  through  its  transmutations,  and  w411 
be  subject,  in  its  new  form,  to  the  rights  of  those  interested  in 
the  estate;  and  proof  of  substantial  identity  is  sufficient. 

§  171.  Power  of  Alienation.  —  But  an  executor  or  adminis- 
trator has  at  common  law  power  to  dispose  of  and  alien  the 
assets  of  the  decedent;  he  has  absolute  power  over  them  for  this 
purpose,  and  they  cannot  be  followed  by  the  creditors  of  the 
deceased.  And  he  may  convert  them  to  his  own  use,  thus 
making  himself  chargeable  for  the  amount,  and  subjecting  them 
thus  converted  to  the  same  incidents  and  liabilities,  in  all  re- 
spects, as  if  they  had  never  belonged  to  the  estate  of  the  de- 
ceased.^ But  this  common-law  doctrine,  as  hereafter  shown,  is 
materially  modified  in  America. 

*  Woemer  on  Administration,  §  175. 


§§  172,  173]    OF  SPECIAL  AND   QUALIFIED  ADMINISTRATORS.     143 


CHAPTER  XIX. 

OF  SPECIAL  AND  QUALIFIED  ADMINISTRATORS. 

§  172.  Administrators  cum  Testament©  Annexe.  —  It  has 
been  shown  that  the  chief  distinction  between  an  executor  and 
an  administrator  Ues  in  the  source  of  their  appointment,  and 
in  the  fact  that  the  one  disposes  of  the  estate  according  to  the 
directions  of  the  testator,  while  the  other  is  governed  in  this 
respect  by  the  general  law.  The  distinction  is  still  fainter  in 
cases  where  a  will  exists  and,  from  any  cause,  there  is  no  execu- 
tor. In  such  case  the  probate  court  designates  a  person  to 
carry  out,  or  execute,  the  will,  which  is  then  annexed  to  and  be- 
comes part  of  his  letters;  from  which  circumstance  he  is  known 
as  administrator  (not  executor,  because  not  nominated  by  the 
testator)  cum  testamento  annexo,  or  administrator  with  the  will 
annexed.  Since  it  is  his  duty  to  dispose  of  the  property  of 
the  testator  in  accordance  with  the  provisions  of  the  will,  it  is 
obvious  that  his  powers  can  differ  but  slightly  from  those  of  an 
executor. 

Since  all  the  duties  of  an  executor,  pertaining  to  his  office  as 
such,  devolve  to  the  administrator  with  the  will  annexed,  the 
latter  possesses,  generally,  the  same  powers,  is  bound  by  the 
same  duties,  and  subject  to  the  same  liabilities  as  the  former, 
whether  appointed  originally,  or  upon  the  death,  removal,  or 
resignation  of  the  executor;  but  the  powers  and  duties  not  neces- 
sarily connected  with  the  functions  of  an  executor  devolve  upon 
the  administrator  with  the  will  annexed  only  when  it  appears 
clearly  from  the  will  that  the  testator  so  intended;  as  where, 
for  instance,  he  directed  an  act  to  be  done  at  all  events,  without 
leaving  any  discretion  to  the  executor. 

§  173.  Administrators  de  Bonis  Non.  —  Upon  the  death,  re- 
moval, or  resignation  of  a  sole  executor  or  administrator,  or  of 
all  of  several  joint  executors  or  administrators,  before  the  estate 
has  been  fully  administered,  it  becomes  necessary  to  appoint  a 


144  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  173 

successor,  to  the  end  that  the  administration  may  be  completed. 
Such  an  officer  is  known  as  administrator  de  bonis  non  {admin- 
istratis),—  administrator  of  the  unadministered  effects;  or,  if 
he  succeed  an  executor  or  an  administrator  cum  tcstaviento 
annexo,  he  is  known  as  administrator  de  bonis  non  cum  testa- 
mento  annexo  —  administrator  with  the  will  annexed  of  the 
unadministered  goods.  At  common  law  there  is  a  distinction 
in  this  respect  between  executors  and  administrators,  growing 
out  of  the  doctrine  that  an  executor's  executor  succeeds  to 
the  estate  of  the  deceased  executor's  testator,  but  not  the  de- 
ceased executor's  administrator,  nor  does  a  deceased  adminis- 
trator's executor  or  administrator  succeed  to  the  estate  of  the 
original  intestate.  This  distinction  disappears,  of  course,  with 
the  rule  from  which  it  springs,'  and  now  exists  in  very  few  of 
the  American  States;  where  it  is  not  recognized,  the  necessity 
for  the  appointment  of  an  administrator  de  bonis  non  is  the 
same,  whether  it  was  an  executor  or  administrator  who  left 
the  estate  unadministered.  It  is  to  be  observed,  hoAvever, 
that  a  successor  to  an  executor  provided  for  in  the  will  by 
the  testator,  completes  the  administration  as  executor,  not  as 
administrator. 

An  estate  is  not  fully  administered  so  long  as  anything  re- 
mains to  be  done  to  vest  the  title  of  the  decedent's  estate  in 
the  beneficiary,  whether  creditor,  next  of  kin,  legatee,  or  devisee, 
which  no  one  but  an  executor  or  administrator  can  lawfully  do; 
such  as  paying  a  legacy,  or  distributing  the  effects  or  assets, 
although  the  assets  had  been  reduced  to  money,  paying  debts, 
collecting  debts,  or  the  like.  But  it  has  been  held  in  several 
cases  that,  where  all  that  remains  to  be  done  is  some  mere 
formality,  the  appointment  of  the  administrator  de  bonis  non 
should  be  refused.^ 

The  administration  de  bonis  non  may  be  granted  after  any 
length  of  time,  but  lapse  of  time  and  other  circumstances  may 
raise  a  presumption  that  all  debts  against  an  estate  are  barred 
or  paid,  and  that  the  remaining  assets  belong  to  the  heirs,  in 

1  Thus  where  an  asset  supposed  to  be  valueless  acquired  value  after 
final  settlement,  it  was  held  that  the  distributees  of  the  estate  could  sue 
for  it;  and  that  an  administrator  de  bonis  non  should  not  be  appointed. 
Jordan  v.  Hunnel,  96  Iowa  334;  but  contra:  Mallory's  Appeal,  62  Conn.  218. 


§§  174,  175]    OF  SPECIAL  AND   QUALIFIED  ADMINISTRATORS.     145 

which  case  the  administration  cannot  be  reopened  by  the  ap- 
pointment of  an  administrator  de  bonis  non.  If  nothing  remains 
to  be  done  to  complete  administration,  the  grant  of  letters  de 
bonis  non  is  merelj'  nugatory. 

Since  there  can  be  but  one  vahd  administration  in  the  same 
State  of  the  same  succession  at  the  same  time,  the  appointment 
of  an  administrator  de  bonis  non  before  the  death,  removal,  or 
resignation  of  the  executor  or  original  administrator  is  a  nullity. 

§  174.  Public  Administrators.  —  Where  no  person  is  entitled 
to  administer  on  the  estate  of  a  deceased  person,  in  the  juris- 
diction; or  where  those  so  entitled  for  any  reason  decline  to  act, 
the  State  must  supply  some  person  whose  duty  it  is  to  conduct 
such  administration.  In  some  States  some  official,  for  instance 
the  sheriff,  is  charged  with  this  duty  ex  officio.  In  most  a 
special  officer  is  elected  or  appointed  to  whom  the  name  of 
Public  Administrator  is  usually  given.  The  general  scope  of 
his  duty  is  to  administer  on  estates  otherwise  without  admin- 
istration. But  States  vary  widely  in  fixing  the  kinds  of  estates 
on  which  this  official  must  administer,  in  determining  the 
method  of  his  taking  charge,  in  determining  his  relations  to  his 
successor  in  office,  and  many  similar  questions.  These  matters 
depend  on  the  local  statutes,  and  cannot  here  be  pursued  in 
detail. 

§  175.  Administrators  Pendente  Lite.— The  authority  of  testa- 
mentary courts  to  grant  administration  -pendente  lite  —  during 
a  controversy  concerning  the  right  to  the  administration  — 
seems  to  have  always  been  admitted;  and  since  the  case  of 
Walker  v.  Woolaston,^  the  power  of  the  court  to  grant  adminis- 
tration pendente  lite  in  cases  touching  an  executorship  also  has 
been  settled.  The  safety  of  the  estate  requires  that  some  person 
be  charged  with  the  duty  and  armed  with  the  necessary  au- 
thority to  protect  and  preserve  it  until  the  termination  of  the 
contest  touching  the  administration  or  executorship  shall  place 
it  in  the  charge  of  the  permanent  administrator  or  executor; 
hence  they  are  also  known  as  administrators  ad  colligendum,  and 
the  general  duties  of  such  an  administrator  have  been  described 
as  being  simply  to  represent  the  estate  during  the  pendency  of 
the  litigation  and  to  see  that  no  detriment  comes  to  the  goods 
1  2  P.  Wms.  576. 


146  THE  LAW  OF  DECEDENTS'  ESTATES.  [§  176 

or  effects  of  the  estate,  and  administrators  pendente  Hie  com- 
pared to  receivers  in  chancery.  Their  authority  ceases,  of  course, 
upon  the  termination  of  the  contest,  and  they  must  then  sur- 
render the  estate  into  the  hands  of  the  rightful  representative. 
But  until  such  termination  of  their  office  they  may  maintain 
suits  for  debts  due  the  deceased,  and  bring  ejectment  for  lease- 
hold estates  against  the  heirs,  next  of  kin,  or  any  other  person 
who  may  be  in  possession  or  pay  the  widow's  award.  Whatever 
they  may  lawfully  do  is  binding  upon  the  estate.  In  the  ab- 
sence of  statutory  authority,  they  have  no  power  other  than 
may  be  necessary  to  collect  the  effects. 

§  176.  Temporary  and  Limited  Administration.  —  Special  ad- 
ministrators, known  as  administrators  ad  litem,  are  sometimes 
appointed  for  the  sole  purpose  of  defending  or  prosecuting  par- 
ticular suits  instituted  by  or  against  a  person  who  may  die 
while  such  suit  is  pending;  or  where  a  pressing  necessity  is 
sho^Ti  for  carrying  on  proceedings  in  chancery,  and  there  is  no 
general  personal  representative;  or  where  the  interest  of  the 
general  administrator  or  executor  conflicts  with  that  of  the 
estate.  In  several  States  the  administrator  ad  litem  is  well 
kno\Mi  for  the  last-named  purpose,  that  is,  to  defend  the  estate 
when  the  administrator  or  executor  has  a  claim  against  the 
estate  to  present  in  court.  Of  course  such  administrator  ad 
litem  has  no  control  over  assets  of  the  estate;  nor  indeed  any 
powers  or  duties  beyond  those  of  the  litigation. 

There  are  other  temporary  administrations  knowm  to  the 
common  law,  and  of  importance  in  England,  which  are  not  so 
important  in  America,  because  the  theory  of  administration 
differs  in  the  two  countries  in  some  important  particulars, 
chief  among  which  is  the  time  during  which  the  authority  of 
personal  representatives  continues.  In  England  the  adminis- 
tration extends,  in  general,  to  the  whole  personal  estate  of  the 
deceased,  and  terminates  only  with  the  life  of  the  grantee; 
while  the  authority  of  limited  administrators  is  confined  to  a 
particular  extent  of  time,  or  to  a  specified  subject-matter.  At 
the  conmion  law,  too,  executors,  and  at  one  period  of  time  ad- 
ministrators, possessed  an  interest  in  the  residuum  of  the  es- 
tates in  their  charge  which  has  rarely  or  never  been  recognized 
in  the  United  States.    It  is  the  policy  in  this  country,  declared 


§  176]        OF  SPECIAL  AND  QUALIFIED  ADMINISTRATORS.  147 

and  emphasized  by  the  statutes  of  the  several  States,  echoed 
by  the  courts,  and  warmly  approved  by  the  people,  to  reduce 
the  time  allowed  executors  and  administrators  to  close  up  their 
administrations  to  the  briefest  period  compatible  with  justice 
to  creditors. 

So  at  common  law,  as  also  under  the  statutes  of  some  States, 
when  the  person  named  as  executor  is  a  minor,  administration 
will  be  granted  until  the  minor  attains  majority,  to  a  tempor- 
ary administrator,  designated  as  durante  minore  estate.  And  at 
common  law  an  administrator  durante  absentia  could  be  ap- 
pointed in  the  absence  from  the  country  of  the  person  entitled 
to  administer.  Such  an  administrator  does  not  exist  in  America. 
Prolonged  absence  in  America  would  be  cause  for  removal;  or  if 
the  party  absent  had  never  qualified,  for  forfeiture,  and  con- 
sequent appointment  of  a  regular  permanent  administrator. 


§  177J  WHAT  MAY  BE  DONE  BEFORE  PROBATE  OR  LETTERS.   149 


TITLE   THREE. 

OF   THE   DEVOLUTION   TO   THE   LEGAL 
REPRESENTATIVES. 


PART    I. 
OF  THE  ESTATE  WITHOUT  OFFICIAL  REPRESENTATION. 


CHAPTER  XX. 

WHAT  MAY  BE  DONE  BEFORE  PROBATE  OR  GRANT  OF  LETTERS. 

§  177.  To  whom  the  Real  and  to  whom  the  Personal  Property 
descends.  —  Upon  the  death  of  an  owner  of  property  his  real 
estate  descends,  at  common  law,  to  his  heirs  or  devisees,  sub- 
ject, under  a  series  of  EngHsh  statutes,  to  be  converted  into 
assets  for  the  payment  of  the  owner's  debts,  if  the  personalty 
be  insufficient  for  that  purpose.  This  habiUty,  however,  does 
not  deflect  the  course  of  descent:  the  personal  representative 
possesses  only  the  naked  power  to  sell  or  lease  the  real  estate, 
if  it  become  necessary,  to  pay  debts,  and  until  this  power  is 
executed,  by  order  of  the  court  having  jurisdiction,  the  title 
and  its  defence,  the  possession,  rents,  and  profits,  belong  to 
the  heirs  and  devisees.  The  title  of  the  heir  or  devisee  vests 
instantly  upon  the  death  of  the  ancestor  or  testator;  and  when 
the  executor  or  administrator  sells,  the  sale  does  not  relate  back 
to  the  death  of  the  deceased,  but  takes  effect  from  the  time 
when  made.  The  law  is  substantially  the  same  in  most  of  the 
American  States,  although  some  of  them  have  abolished  the 
artificial  common-law  rule  distinguishing,  in  this  respect,  be- 
tween real  and  personal  estate,  and  subject  both  classes  of 
property  aUke  to  the  title  of  personal  representatives  for  the 


150 


THE   LAW   OF  DECEDENTS'   ESTATES.         [§§  17S,  179 


purpose  of  administration.  These  exceptions  will  be  more 
conveniently  noted  in  connection  with  the  subject  of  the  liabil- 
ity of  real  estate  for  the  debts  of  its  deceased  owner. 

The  personal  estate  of  a  decedent,  however,  passes,  as  at 
common  law,  so  in  all  the  States  (with  the  exception,  in  some 
particulars,  of  Louisiana),  to  the  executor  or  administrator. 

We  have  already  seen,  however,  that  as  to  the  time  when  the 
personal  estate  vests  in  the  representatives  there  is,  at  common 
law,  a  broad  distinction  between  executors  and  administrators. 
It  results  from  the  English  doctrine  ascribing  the  executor's 
authority  to  the  will  itself,  of  which  the  probate  is  but  the 
authenticated  evidence,  that  the  property  of  the  deceased 
vests  in  the  executor  from  the  moment  of  the  testator's  death; 
while  the  administrator,  whose  sole  source  of  authority  is  the 
appointment  by  the  probate  court,  can  have  no  power  to  act 
before  the  grant  of  letters. 

§  178.    Authority  of  Executors  before  Grant  of  Letters  Testa- 
mentary. —  In  most  of  the  American  States  executors  are  re- 
quired to  qualify  by  giving  bond  and  taking  the  oath  of  office; 
until  they  have  complied  with  these  conditions  they  have  no' 
legal  power  to  act,  except  decently  to  bury  the  deceased  and  to 
do  what  may  be  necessary  to  preserve  the  estate.    Where  the 
statute  authorizes  the  executor  to  act  without  bond,  the  grant 
of  letters  testamentary  by  the  probate  court  is  the  source  of 
his  authority,  which  does  not  depend  for  its  validity  upon  the 
manual  issuance  of  the  letters.    Hence  the  sale  or  transfer  of 
property  by  an  executor  who  has  not  qualified  is  void,  and  his 
assent  to  a  specific  legacy  does  not  pass  the  legal  title  to  the 
thing  bequeathed.     It  has  also  been  held  that  an  executor 
before  probate,  if  legally  competent  to  qualify,  may  be  treated 
as  representing  his  estate  so  far  as  relates  to  acts  in  which  he  is 
merely  passive,  such  as  receiving  notice  to  an  indorser  of  the 
dishonor  of  a  note. 

§  179.  Authority  of  Administrators  before  Grant  of  Letters.  — 
It  is,  of  course,  inaccurate  to  predicate  any  authority  of  an 
administrator  who  is  shown  by  the  statement  not  to  be  an 
administrator;  the  phrase  is  employed  to  designate  those  per- 
sons who,  having  a  legal  preference  or  exclusive  right  to  the 
appointment  as  administrator,  act  for  the  protection  and  in 


§  179]   WHAT  MAY  BE  DONE  BEFORE  PROBATE  OR  LETTERS.    151 

the  interest  of  the  estate  in  anticipation  of  such  appointment. 
The  principle  upon  which  the  acts  of  an  executor  are  validated 
upon  subsequent  probate  of  the  will  or  grant  of  letters  testa- 
mentary is  extended  to  administrators,  and  has  been  enlarged 
upon  in  an  earlier  chapter  treating  of  the  nature  of  the  title  of 
executors  and  administrators.  The  decisive  test  to  ascertain 
whether  the  acts  done  before  appointment  are  legalized  or 
ratified  by  the  subsequent  grant  of  administration  is  whether 
such  acts  would  have  been  valid  had  he  been  the  rightful  ad- 
ministrator; the  consequences  both  to  the  person  acting  and  to 
the  estate  must  be  the  same  as  if  he  had  been  legally  in  charge 
of  the  estate.  The  doctrine  is  stated  to  be,  that  the  title  to 
the  personal  property  of  a  decedent  is  in  abeyance  until  his 
executor  qualifies,  or  an  administrator  is  appointed,  when  it 
vests  in  him  by  relation  from  the  time  of  the  death.  It  has 
already  been  pointed  out,  that  this  doctrine  is  a  fiction  of  the 
law  to  prevent  injustice  and  injimes  to  estates,  and  will  never 
be  resorted  to  where  it  might  unjustly  affect  the  rights  of  inno- 
cent parties  intervening,  or  to  recognize  or  validate  unauthor- 
ized acts  in  prejudice  of  the  estate. 


152  THE  LAW  OF  DECEDENTS'  ESTATES.  [§  ISO 


CHAPTER  XXL 

OF  EXECUTORS  DE  SON  TORT. 

§  180.    Extent  of  Doctrine  of  Executor  de  son  Tort  in  America.  — 
The  common-law  doctrine  ascribing  to  an  executor  authority 
to  act  without  first  quaHfying,  or  going  through  any  ceremony 
of  authentication  or  induction   into  office  whatever,   which 
might  serve  as  notice  to  the  pubHc  of  his  official  character, 
has  given  rise  in  the  English  law  to  what  Mr.  Schouler  terms 
"an  official  name  to  an  unofficial  character;  styling  as  executor 
de  son  tort  —  executor  in  his  own  wrong  —  whoever  should 
officiously  intermeddle  with  the  personal  property  or  affairs  of 
a  deceased  person,  having  received  no  appointment  thereto."  ^ 
The  theory  of  holding  an  intermeddler  liable  in  the  character 
which  he  has  himself  voluntarily  assumed,  is  not  unjust  to  him, 
and  may  be  necessary  to  the  protection  of  the  interests  of  cred- 
itors, heirs  and  legatees  of  the  deceased  person,  not  only  be- 
cause strangers  may  naturally  conclude  that  the  person  so 
acting  has  a  will  which  he  has  not  yet  proved,  but  for  the  sub- 
stantial reason  that,  by  holding  him  liable  in  the  assumed  char- 
acter, the  remedy  of  parties  injured  is,  at  least  at  common  law, 
much  simplified,  and  circuity  of  action  avoided. 

Distinguished  American  writers  on  this  subject  have  expressed 
their  disapprobation  of  the  doctrine  of  liability  as  executor 
de  son  tort  in  strong  terms,  and  intimate  that  it  meets  with 
little  favor  in  American  courts.  There  can  be  no  doubt  that 
in  many  of  the  American  States,  in  which  the  common-law 
system  of  the  administration  of  the  estates  of  deceased  persons 
has  been  entirely  done  away  with,  this  doctrine  should  disap- 
pear with  the  conditions  which  called  it  into  being.  There  is 
neither  occasion  nor  room  for  it  in  those  States  which  have 
vested  complete  jurisdiction  in  probate  courts  to  control  the 
settlement  of  estates  of  deceased  persons.  It  is  quite  apparent 
that  in  such  States  it  would  be  irrational  to  apply  the  doctrine 
^  Schouler  on  Executors,  §  184. 


§  ISl]  OF  EXECUTORS  DE   SON  TORT.  153 

of  executor  de  son  tort  to  one  who  unlawfully  appropriates  the 
property  left  by  a  deceased  person,  and  thereby  renders  himself 
liable  as  a  wrongdoer  to  the  one  upon  whom  the  law  casts  the 
title:  which,  by  relation,  attaches  to  him  from  the  time  of  the 
decedent's  death.    No  one's  interest  would  be  subserved. 

The  office  of  executor  de  son  tort  is  accordingly  abol'shed  in 
New  York,  and  declared  by  the  courts  of  Arkansas,  California, 
Kansas,  Missouri,  Ohio,  Oregon,  and  Texas,  and  perhaps 
others,  to  be  repugnant  to  the  letter  and  spirit  of  the  law 
of  these  States.  In  other  States,  whose  administration  laws 
present  the  same  or  similar  features  as  those  above  men- 
tioned, neither  the  legislature  nor  courts  have  abolished  the 
doctrine,  at  least  not  in  express  terms;  but  it  is  gradually 
passing  out  of  notice,  for  the  reason  that  it  meets  no  practical 
want. 

In  those  States,  however,  in  which  the  common-law  mode  of 
administration  is  still  more  or  less  adhered  to,  —  where,  for 
instance,  the  executor  has  power  to  act  before  qualifying,  and 
even  before  probate  of  the  will,  where  he  may  pay  debts  not 
proved  before  a  court  or  without  order  of  the  court,  where  he 
is  not  required  to  give  bond,  etc.,  —  the  doctrine  of  executor 
de  son  tort  is  a  natural  and  essential  element  of  their  law. 

§  181.  Executor  de  son  Tort  —  how  constituted.  —  "  If  one 
who  is  neither  executor  nor  administrator  intermeddles  with 
the  goods  of  the  deceased,  or  does  any  other  act  characteristic 
of  the  office  of  executor,  he  thereby  makes  himself  what  is  called 
in  the  law  an  executor  of  his  own  wrong,  or,  more  usually,  an 
executor  de  son  tort."  ^ 

Very  slight  circumstances  of  intermeddling  with  the  goods 
of  a  deceased  person  will  make  one  liable  as  executor  de  son 
tort.  Mr.  Williams  alludes  to  some  ancient  cases  in  which  the 
milking  of  a  cow  by  the  widow,  taking  a  dog,  a  bedstead,  a 
Bible,  were  held  sufficient,  as  indicia  of  being  the  representative 
of  the  deceased.  But  there  are  many  acts  which  a  stranger 
may  perform  without  incurring  the  hazard  of  making  himself 
liable  as  executor  de  son  tort;  notably,  all  acts  or  offices  of  mere 
kindness  and  charity,  and  looking  to  the  preservation  of  the 
property. 

»  Williama  on  Executors  [257]. 


154  THE   LAW  OF  DECEDENTS'  ESTATES.         [§§  1S2,  1S3 

§  182.  The  Liability  of  the  Executor  de  son  Tort.  —  An  execu- 
tor de  son  tort  lias  all  the  liabilities,  though  none  of  the  privi- 
leges, that  belong  to  the  character  of  executor.  He  is  liable  to 
be  sued  by  the  rightful  executor  or  administrator,  by  a  creditor, 
or  by  a  legatee;  but  not,  it  seems,  to  the  next  of  kin,  so  long  as 
any  debts  remain  unpaid,  though  otherwise  where  there  are 
no  debts  owing. 

The  liability  of  an  executor  de  son  tort  to  creditors  of  the  de- 
ceased does  not,  at  common  law,  extend  beyond  the  goods 
which  he  has  administered;  for  while  he  is  not  allowed,  by  his 
own  WTongful  act,  to  acquire  any  benefit,  yet  he  is  protected, 
if  he  pleads  properly,  for  all  acts  other  than  those  for  his  own 
advantage,  which  a  rightful  executor  might  do. 

The  liability  of  an  executor  de  son  tort  at  the  suit  of  a  rightful 
executor  or  administrator  is  necessarily  different  from  that  to 
a  creditor,  for  this  among  perhaps  other  reasons,  that  the  inter- 
meddling with  the  assets  of  an  estate  under  legal  administration 
involves  an  element  of  wrong  not  included  in  the  intermeddling 
when  there  is  no  lawful  representative;  viz.  the  infringement  of 
the  rights  of  the  executor  or  administrator.  Hence  to  an  action 
by  the  rightful  executor  or  administrator  the  executor  de  son 
tort  cannot  plead  in  bar  the  payment  of  debts,  etc.,  to  the  value 
of  the  assets,  or  that  he  has  given  the  goods  in  satisfaction  of  the 
debts.  He  may  prove,  however,  under  the  general  issue,  in 
mitigation  of  damages,  payments  made  by  him  in  the  rightful 
course  of  administration,  because  it  is  no  detriment  to  the  ad- 
ministrator dejure  that  such  payments  were  made  by  the  execu- 
tor de  son  tort. 

§  183.  Effect  of  Appointment  of  Executor  de  son  Tort  upon 
his  Previous  Acts.  —  It  has  already  been  mentioned,  that  the 
grant  of  letters  to  an  executor  or  administrator  relates  back, 
so  as  to  legalize  all  previous  acts  within  the  authority  and  scope 
of  a  rightful  representative.  This  doctrine  is  obviously  appli- 
cable to  the  acts  of  executors  de  son  tort  who  may  subsequently 
obtain  a  grant  of  letters;  for  the  executor  who  was  not  qualified 
to  act,  and  the  person  who  had  not  been  appointed  adminis- 
trator, were  equally  executors  de  son  tort  if  they  intermeddled. 
The  intermediate  acts,  which  were  tortious  or  unlawful  for  the 
want  of  competent  authority  before  appointment,  become,  by 


§  183]  OF  EXECUTOES  DE  SON  TORT.  155 

relation,  lawful  acts  of  administration,  for  which  the  actor 
must  account;  the  liability  to  account,  involves  a  validity  in  his 
acts  which  is  a  protection  to  those  who  have  dealt  with  him. 

It  would  seem  to  result  from  the  doctrine  holding  the  lawful 
acts  of  an  executor  de  son  tort  to  be  good,  that  the  alienation  of 
goods  by  him  for  the  payment  of  debts  is  indefeasible. 


15G  THE  LAW   OF  DECEDENTS'   ESTATES.         [§§  1S4,  185 


CHAPTER  XXII. 

OF  THE  NECESSITY  OF  OFFICIAL  ADMINISTRATION. 

§  184.  Why  Administration  is  Necessary.  —  The  necessity  of 
official  administration,  that  is  to  say,  of  obtaining  a  grant  of 
letters  testamentary  or  of  administration,  as  the  case  may  be, 
and  the  judicial  sanction  of  payment  of  debts  and  legacies  out 
of  the  estate  and  the  distribution  of  the  residue,  arises  out  of 
the  common-law  doctrine  that  the  personal  property  of  a  dece- 
dent descends  to  the  executor  or  administrator,  while  his  real 
estate  descends  to  the  devisees  or  heirs,  subject,  under  English 
and  American  statutes,  to  the  payment  of  his  debts  and  leg- 
acies. This  doctrine  is  recognized  substantially  in  all  the  States, 
except  Louisiana,  where,  under  circumstances  pointed  out  by 
law,  the  title  to  personal  as  well  as  real  property  descends 
directly  to  the  natural  or  instituted  heirs.  The  direct  conse- 
quence of  this  principle  of  the  law  is,  that  without  due  course  of 
administration  the  claims  of  creditors  cannot  be  lawfully  sat- 
isfied, and  neither  heirs  nor  legatees  can  obtain  a  legal  title  to 
their  legacies  or  distributive  shares;  and  that  neither  devisees 
nor  heirs  can  hold  the  real  estate  to  which  they  succeed  free 
from  the  claims  of  creditors  of  the  deceased,  against  whom  limi- 
tation does  not,  in  some  States,  run  after  the  debtor's  death, 
until  there  be  lawful  administration  of  his  estate.  Another 
consequence  is,  that  the  payment  of  debts  to  the  deceased  can 
be  coerced  by  no  one  but  the  lawfully  appointed  executor  or  ad- 
ministrator, even  in  equity,  because  there  is  no  privity  between 
the  debtors  and  any  person  other  than  the  legal  representative. 

§  185.  Administration  not  Necessary  under  Certain  Circum- 
stances in  Some  States.  —  Apart  from  specific  statutes,  the 
rulings  of  most  States  dispense  with  administration  where  it  is 
unnecessary.  The  right  of  creditors  to  the  assets  of  a  deceased 
person  is  usually  the  principal  reason  for  requiring  official  ad- 
ministration, and  courts,  therefore,  sanction  the  disposition  of 


§  185]       THE  NECESSITY  OF  OFFICIAL  ADMINISTRATION.  157 

the  property  of  a  decedent  without  the  appointment  of  an  ad- 
ministrator where  it  is  certain  that  no  debts  are  owing.  Thus, 
upon  the  death  of  an  infant  intestate,  administration  is  held 
unnecessary,  because  an  infant  is  presumed  not  to  have  in- 
curred any  HabiHty;  but  that  presumption  is  rebutted  where  he 
was  married  and  leaves  a  widow,  and  of  course  when  the  actual 
existence  of  debts  can  be  shown.  More  broadly,  "a  court  of 
equity  will  dispense  with  an  administration,  and  decree  dis- 
tribution directly,  when  it  affirmatively  appears  that,  if  there 
was  an  administrator,  the  only  duty  devolving  on  him  would 
be  distribution.  Then  administration  is  regarded  as  'a  useless 
ceremony.'"  ^  This  rule  is  recognized  in  decisions  of  numerous 
States.^  It  is,  however,  difficult  to  perceive  how  it  can  be  de- 
termined as  a  matter  of  law  that  there  are  no  debts  which  can 
be  proved  against  a  decedent's  estate,  before  the  period  allowed 
for  proving  claims  has  expired. 

There  are  also  statutes  in  many  States  legally  dispensing  with 
administration  under  certain  circumstances.  In  one  class  of 
these  statutes  it  is  provided  that  when  the  person  nominated 
in  the  will  as  executor  is  also  the  residuary  legatee,  he  may,  at 
his  option,  instead  of  the  regular  administration  bond  required 
of  executors,  give  bond  with  sufficient  sureties  conditioned  that 
he  will  pay  the  testator's  debts  and  legacies  (including,  either 
expressly  or  by  implication,  funeral  expenses  and  the  allowances 
to  the  widow  and  children),  and  will  then  be  relieved  from  the 
necessity  of  returning  an  inventory,  or  further  accounting  in 
the  probate  court.  An  executor  giving  such  bond  at  once 
becomes  liable  for  all  of  the  debts  of  the  testator,  but  the  lia- 
bility of  the  estate  is  not  extinguished;  and  it  operates  as  an 
admission  of  sufficient  assets  and  a  guarantee  to  pay  all  debts, 
since  the  executor  files  no  inventory  of  assets,  the  only  means 
from  which  it  could  be  ascertained  whether  they  equal  the  debts 
and  legacies. 

Provision  is  made  by  statute  in  some  of  the  States  that,  where 
the  property  of  an  estate  does  not  exceed  in  value  the  amount 
which  is  secured  to  the  widow  or  minor  orphans  for  their  imme- 
diate support,  the  probate  court  may  dispense  with  adminis- 

1  Fretwell  v.  McLemore,  52  Ala.  124. 

2  See  Woemer  on  Administration,  §  201. 


158  THE   LAW  OF  DECEDENTS'  ESTATES.  [§  185 

tration,  and  authorize  the  widow,  or  minor  children  by  next 
friend,  to  collect  and  appropriate  to  their  own  use  all  such  prop- 
erty. The  soundness  of  the  principle  upon  which  such  provi- 
sions rest,  or  rather  the  absurdity  of  a  contrary  view,  is  self- 
evident.  Why  should  the  law  compel  administration  where 
there  is  nothing  to  administer?  The  appointment  of  an  ad- 
ministrator in  such  case  could  have  no  possible  effect  but  to 
diminish  or  eat  up  what  the  law  intends  for  the  support  of 
widows  and  orphans. 

The  descent  of  property  is  not  governed  by  the  same  rule  in 
Louisiana  as  in  the  other  States,  but  is  modelled  after  the  law 
prevalent  on  the  continent  of  Europe.  That  law  differs  so 
radically  in  its  fundamental  standpoint  from  the  system  preva- 
lent in  the  other  States,  that  it  cannot  be  fairly  stated  without  a 
treatment  extending  beyond  the  permissible  limits  of  this 
treatise.  To  avoid  repetition,  it  may  here  be  said  of  the  doc- 
trines laid  down  in  this  book,  that  they  do  not  necessarily  apply 
in  Louisiana. 


§  186]      THE  PRELIMINARIES  TO  THE   GIt\NT  OF  LETTERS.       159 


PART    II. 

OF   THE  INDUCTION   TO    THE   OFFICE    OF  EXECUTOR  AND 
ADMINISTRATOR. 


CHAPTER  XXIII. 

OF  THE   PRELDIINARIES  TO  THE   GRANT   OF  LETTERS 
TESTAMENTARY  AND   OF  ADMINISTRATION. 

§  186.  Local  Jurisdiction  to  grant  Letters  Testamentary  and 
of  Administration.  —  Whatever  may  have  been  the  law  in 
ancient  times,  it  is  certain  that  at  the  time  of  the  passing  of 
the  Court  of  Probate  Act,  the  ecclesiastical  court  was,  in  Eng- 
land, the  only  court  in  which  the  validity  of  wills  of  personalty, 
or  of  any  testamentary  paper  whatever  relating  to  personalty, 
could  be  established  or  disputed,  except  certain  courts  baron. 
In  the  United  States  this  jurisdiction,  and  the  power  to  appoint 
executors  and  administrators,  are  vested  in  probate  courts,  or 
courts  having  probate  powers,  by  whatever  name  known. 

The  rule  in  America  is  universal,  that  administration  may 
be  granted  in  any  State  or  Territory  where  unadministered 
personal  property  of  a  deceased  person  is  found,  or  real  property 
subject  to  the  claim  of  any  creditor  of  the  deceased;  ^  and  that 
probate  of  the  will  of  any  deceased  person  may  be  granted  in 
any  State  where  he  leaves  personal  or  real  property. 

As  between  the  several  courts  within  the  same  State  or  sov- 
ereignty, jurisdiction  attaches  primarily  to  that  tribunal  which 
is  invested  with  probate  powers  for  the  county  or  territorial 
district  which  includes  the  domicile  of  the  testator  or  intestate 
at  the  time  of  his  death,  without  regard  to  the  place  of  his  death 
or  situs  of  his  property. 

»  Thormann  v.  Frame,  176  U.  S.  350,  355.  See  Woemer  on  Adminis- 
tration, §  204. 


IGO  THE  LAW  OF  DECEDENTS'  ESTATES.  [§  187 

To  grant  letters  on  the  estate  of  a  deceased  person  the 
probate  court  must  find  as  a  fact,  and  thus  judicially  determine, 
that  the  deceased  had  his  domicile  in  the  county  or  territorial 
district  over  which  the  jurisdiction  of  the  court  extends,  for 
otherwise  the  court  would  have  no  jurisdiction  to  grant  letters, 
or  take  probate  of  a  will.  It  was  formerly  held  in  many  States, 
that  notwithstanding  this  finding  and  adjudication  by  tlie  court, 
proof  might  be  made  in  a  collateral  proceeding  showing  that  such 
finding  and  adjudication  was  erroneous,  and  that  as  a  matter 
of  fact  the  decedent  was  at  the  time  of  his  death  domiciled  in 
a  different  county;  and  that  in  such  case  the  grant  of  letters, 
was  void  ah  initio  for  the  want  of  jurisdiction.  But  the  more 
reasonable  doctrine  is  gaining  ground,  and  is  now  held  in  nearly 
all  the  States,  that  letters  so  granted,  while  they  are  voidable 
when  properly  assailed,  are  valid  until  revoked  in  a  direct 
proceeding. 

If  the  deceased  had,  at  the  time  of  his  death,  no  fixed  place 
of  residence,  letters  may  be  granted  in  the  county  where  he 
died;  or  if  he  died  abroad,  in  any  county  where  his  property 
may  be  found;  and  if  he  left  property  in  more  than  one  county, 
then  in  any  of  them. 

It  is  obvious,  however,  that  there  can  be  but  one  grant  of 
administration  on  the  same  estate  at  one  time  in  the  same  sov- 
ereignty or  State;  and  since  the  jurisdiction  which  has  once 
attached  remains  until  final  completion  of  the  administration, 
the  court  first  exercising  jurisdiction  will  retain  it  to  the  exclu- 
sion of  every  other  court  in  the  State. 

§  187.  Jurisdiction  over  Estates  of  Deceased  Non-Residents.  — 
No  administration  can  be  granted  in  the  case  of  a  deceased 
non-resident  unless  he  left  property  within  the  jurisdiction  of 
the  court  making  the  appointment. 

The  situs  of  real  estate  confers  jurisdiction  to  take  probate 
of  a  will  affecting  it.  And  although  realty  goes  to  the  devisee 
or  heir,  and  the  Probate  Court  in  the  process  of  administration 
has  nothing  to  do  with  realty  unless  it  becomes  necessary  to 
sell  land  for  payment  of  debts,  yet  since  the  existence  of  debts 
can  only  be  ascertained  in  due  course  of  administration,  and 
the  title  to  the  realty  can  generally  only  be  cleared  by  adminis- 
tration, the  fact  that  there  is  real  estate  belonging  to  the  estate 


§  1S7]    THE   PRELIMINARIES  TO   THE   GR.\NT   OF   LETTERS.         IGl 

and  within  the  jurisdiction,  is  in  this  sense  property  which 
will  support  the  grant  of  letters  testamentary  or  of  adminis- 
tration by  the  proper  probate  court,  although  it  may  develop 
that  there  are  no  debts  and  no  personal  property.^ 

The  situs  of  personalty  as  conferring  jui-isdiction  presents  a 
matter  of  conflict,  apparent  rather  than  real.  The  term  bona 
notahilia,  which  was  originally  used  in  England  to  designate 
the  assets  of  the  deceased  which  were  sufficient  to  draw  juris- 
diction from  the  Bishop's  Court  to  the  Archbishop's,  is  now 
applied  to  cover  such  property  as  confers  local  jurisdiction  for 
administration.  Clearly  each  sovereignty  has  the  right  to 
determine  for  itself  what  are  bona  notabilia,  and  cannot  be 
directly  controlled  in  its  decisions  by  any  other  sovereignty. 
But  in  the  interests  of  an  orderly  administration  according  to 
principles  of  universal  justice  and  for  avoidance  of  unseemly 
conflicts,  certain  principles  are  recognized  in  all  jurisdictions 
by  comity.  As  regards  goods  and  chattels  of  the  deceased,  the 
principle  is  universally  recognized  that  they  are  assets  in  the 
jurisdiction  where  they  are  physically  situated  at  the  decedent's 
death. 

As  to  choses  in  action  the  general  doctrine  is  that  judgments 
are  bona  notahilia  where  the  record  is;  specialties  where  they 
are  at  the  time  of  the  creditor's  decease;  and  simple  contract 
debts  where  the  debtor  resides.  But  since  the  doctrine  rests 
on  comity,  the  sovereignty  is  under  no  legal  compulsion  to 
follow  it;  and  can  and  will  set  the  rule  aside,  whenever  substan- 
tial justice,  the  interest  of  its  citizens,  or  the  policy  of  the  State 
is  sufficiently  important  to  warrant  such  a  departure. 

That  the  general  principle  will  not  be  followed  when  justice 
requires  a  departure  is  illustrated  by  the  case  of  Miller  v. 
Hoover}    A  judgment  was  rendered  in  Virginia,  and  after  the 

^  It  is  to  be  remembered,  of  course,  as  stated  in  the  preceding  section, 
that  within  the  respective  counties  of  the  State,  the  letters  must  be  granted  . 
by  the  probate  court  of  the  county  where  the  decedent  died  domiciled, 
which  is  of  force  throughout  the  State,  and  that  there  can  be  but  one  such 
grant  of  letters  within  the  same  State,  though  the  real  estate  may  be 
situated  in  another  county,  and  there  is  no  personalty  or  other  property 
in  the  county  of  the  domicile.  It  is  only  as  to  a  non-resident  of  the  State 
that  the  existence  of  property  confers  jurisdiction  without  reference  to  the 
domicile. 

2  121  Mo.  App.  5GS. 


162  THE   L-YW   OF  DECEDENTS'   ESTATES.  [§  ISS 

judgment  creditor's  death,  and  grant  of  administration  on  liis 
estate  in  his  Virginia  domicile,  the  judgment  debtor  moved  to 
JNIissouri.  Administration  was  granted  in  the  hitter  State  on 
the  judgment  creditor's  estate,  though  the  onl^-  claim  for  an 
asset  there  was  this  judgment  rendered  in  Virginia;  a  claim 
which  of  course  was  an  asset  in  Virginia  at  the  time  adminis- 
tration was  granted  on  the  creditor's  estate,  the  debtor  then 
living  there.    No  other  remedy  was  practicable. 

The  doctrine  that  specialties  are  bona  nolahilia  in  the  juris- 
diction where  they  may  be  physically  found  at  the  decedent's 
death,  though  it  has  ample  authority  back  of  it,  is  not  of  uni- 
versal reception. 

In  cases  of  stock  certificates  it  has  been  held  that  the  certifi- 
cates are  merely  the  evidence  of  the  property  right,  hence 
stock  is  bona  notahilia  at  the  home  of  tho  corporation,  and  not 
where  the  certificates  were  found.^  Again  it  has  been  held  in 
the  case  of  insurance  policies  that  while  they  are  bona  notabilia 
in  the  home  State  of  the  insuring  company,  yet  they  are  also 
such  in  the  State  where  the  policy  —  the  document  itself  —  is 
located  and  where  the  defendant  corporation  can  be  served; 
and  that  when  jurisdiction  has  been  taken  under  the  latter 
theory,  the  State  of  the  home  office  should  decline  jurisdiction 
through  comity.^ 

§  188.  Claims  for  Injury  resulting  in  Death  as  Asset.  —  In 
transitory  torts  which  survive,  the  residence  of  the  defendant 
confers  jurisdiction. 

Some  conflict  arises  in  the  decisions  under  the  so-called  Lord 
Campbell  Acts,  existing  in  every  State,  whereby  an  action  is 
given  for  death  occasioned  by  neglect  or  default,  in  contraven- 
tion of  the  common  law.  When  the  action  is  given  by  the 
statute  to  the  administrator  for  the  sole  benefit  of  the  estate  of 
the  deceased,  there  should  be  no  question  that  the  cause  of 
action  given  by  the  law  of  the  State  where  the  injury  occurred 
(if  it  has  any  extra-territorial  force)  should  constitute  bona 
notabilia  in  a  State  where  the  defendant  resides,  so  that  adminis- 

1  Richardson  v.  Busch,  198  Mo.  174;  Jellenck  v.  Huron  Copper  Co.. 
177  U.S.I. 

2  Sulz  V.  Ins.  Ass'n,  145  N.  Y.  563;  New  England  Co.  v.  Woodworth, 
111  U.  S.  138. 


§  1S9]    THE  PRELIMINARIES  TO  THE  GRANT   OF  LETTERS.        163 

tration  can  be  taken  out  in  the  latter  State  on  the  strength 
thereof.  Where  the  statute  of  the  State  where  the  injury 
occurred  vests  the  cause  of  action  in  the  widow  or  children  of 
the  deceased  for  their  benefit,  and  not  for  the  benefit  of  the 
estate,  the  death  loss  is  clearly  not  bona  notabilia,  and  no  ad- 
ministration on  the  estate  of  the  deceased  in  another  State 
can  be  based  thereon.  But  it  is  very  common  for  the  statute  to 
vest  the  cause  of  action  in  the  administrator,  not  for  the  estate, 
and  he  then  sues  rather  in  the  nature  of  a  trustee  for  the  exclu- 
sive benefit  of  the  family  of  the  deceased.  Technically  such  a 
claim  for  the  benefit  of  widow  and  children,  not  being  assets, 
would  seem  not  to  be  bona  notabilia  in  another  State,  even 
though  the  administrator  be  the  only  plaintiff  provided  by 
statute;  and  there  are  holdings  to  that  effect.  But  a  different 
conclusion  is  reached  in  other  States,  where  "the  fact  that  the 
statute  gives  such  a  right  of  action  to  the  personal  representa- 
tive and  to  him  alone,  implies  the  right  to  appoint,  if  necessary, 
an  administrator  to  enforce  it,"  ^  and  "where  there  is  property 
or  a  fund  or  right  of  action  which  cannot  otherwise  be  made 
available,  it  is  competent  for  the  Probate  Court  to  appoint  an 
administrator  for  the  sole  purpose  of  collecting  and  receiving 
assets  which  will  not  be  assets  of  the  estate  of  his  intestate  or 
liable  for  his  debts,  but  which  will  belong  to  particular  persons 
who  by  law  or  by  contract  with  the  deceased  will  be  entitled 
thereto."  -  In  such  case  it  is  for  the  Probate  Court  to  determine 
whether  there  is  an  apparent  claim,  a  bona  fide  intention  to 
pursue  it,  and  that  administration  is  necessary  for  its  pursuit. 

So  far  as  the  proceeds  of  action  for  death  are  concerned,  as 
we  shall  hereafter  see,  they  do  not  constitute  assets  in  the  ordi- 
nary sense  of  the  term.^ 

§  189.  What  constitutes  Domicile  or  Residence.  —  It  is  not 
always  easy  to  prove  what  was  the  domicile  or  place  of  residence 
of  a  person  at  the  time  of  his  death,  so  as  to  fix  the  jurisdiction 
over  his  estate  in  the  proper  forum.  It  has  been  defined  as 
being,  in  the  common-law  sense,  the  place  where  one  has  his 
true,  fixed,  and  permanent  home  and  principal  establishment, 
to  which  whenever  he  is  absent  he  has  the  intention  of  return- 

^  Hutchins  v.  St.  Paul  R.  R.,  44  Minn.  5. 

2  Sargent  v.  Sargent,  168  Mass.  420,  424.  »  Post,  §  284. 


164  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  190 

ing.  When  once  acquired,  it  continues  until  by  free  choice 
another  is  substituted  therefor.  Hence  there  can  be  no  aban- 
donment or  acquisition  of  a  domicile  by  one  who  is  adjudicated 
of  unsound  mind,  or  by  one  not  sui  juris;  the  domicile  of  the 
child  follows  that  of  its  parents,  and  the  domicile  of  the  wife 
follows  that  of  her  husband.  Absence  from  the  domicile,  and 
residence  elsewhere  for  reasons  of  health,  comfort,  business, 
recreation,  temporary  convenience,  and  the  like,  do  not  consti- 
tute or  indicate  an  abandonment  of  the  domicile.  To  work  a 
change  of  domicile,  there  must  be  a  concurrence  of  the  intention 
to  acquire  a  new  domicile  with  the  fact  of  having  acquired  one 
and  abandoned  the  former  one,  without  the  intention  of  re- 
turning thereto.^ 

§  190.  Proof  of  Death.  —  The  death  of  the  testator  whose 
will  is  to  be  proved,  or  of  the  intestate  whose  estate  is  asked  to 
be  subjected  to  administration,  is  a  question  of  fact  of  which 
proof  must  be  made  before  the  jurisdiction  of  the  court  attaches. 
Ordinarily,  the  death  of  a  person  leaving  property  for  admin- 
istration is  a  matter  of  such  notoriety  that  proof  is  of  easy  ac- 
cess among  the  neighbors,  relatives,  and  persons  interested  in 
the  estate.  But  where  the  testator  or  intestate  was  domiciled 
abroad,  or  died  away  from  home  in  a  remote  country,  direct 
proof  is  not  always  attainable;  and  death  must  in  such  cases  be 
established  by  circumstantial  evidence,  the  most  usual  of  which 
is  such  person's  prolonged  and  unexplained  absence  from  home 
without  being  heard  from.  When  such  absence  from  home  has 
continued  for  above  seven  years,  within  which  time  no  intelli- 
gence of  his  existence  has  reached  his  relatives,  friends,  or  ac- 
quaintances, it  will  be  presumed  that  he  is  dead,  and  proof  of 
these  circumstances,  unrebutted,  will  support  the  adjudication 
of  the  probate  court  necessary  to  give  it  jurisdiction.  This  pre- 
sumption does  not,  obviously,  attach  to  any  particular  time 
within  the  seven  years,  but  in  the  absence  of  facts  indicating 
the  time  of  death,  assumes  the  absentee  to  have  lived  through 
the  whole  period. 

Death  may  also  be  inferred  from  the  absence  of  a  person  from 
his  home,  without  being  heard  from  for  a  period  less  than  seven 
years,  if  proof  be  made  of  other  circumstances  tending  to  show 
1  Woerner  on  Administration,  §  206. 


§  191]    THE   PRELIMINARIES  TO   THE   GRANT   OF   LETTERS.         165 

his  death.  Thus,  evidence  of  one's  long  absence  without  com- 
municating with  his  friends,  of  character  and  habits  making  the 
abandonment  of  home  and  family  improbable,  arid  of  want 
of  all  motive  or  cause  for  such  abandonment,  was  held  sufficient 
to  support  the  presumption  of  death. 

The  factum  of  death  may,  it  seems,  be  proved  by  hearsay 
evidence;  "for,  as  has  been  said,  that  a  person  has  been  missing 
at  a  particular  time,  accompanied  with  a  report  and  general 
belief  of  his  death,  must  be,  in  many  cases,  not  only  the  best 
but  the  only  evidence  which  can  be  supposed  to  exist  of  his 
death."  It  is  so  held  by  the  Supreme  Court  of  the  United 
States  and  in  several  of  the  State  courts. 

The  civil  law  entertains  presumptions,  based  on  age  and  sex, 
of  survivorship  among  different  persons  perishing  in  the  same 
event,  who  would  inherit  from  each  other.  The  doctrine  in 
England,  as  stated  in  the  syllabus  of  Wing  v.  Angmve,^  is  as 
follows:  "there  is  no  presumption  of  law  arising  from  age  or  sex 
as  to  survivorship  aipong  persons  whose  death  is  occasioned  by 
one  and  the  same  cause;  .  .  .  nor  is  there  any  presumption  of 
law  that  all  died  at  the  same  time;  .  .  .  the  question  is  one  of 
fact,  depending  wholly  on  evidence,  and  if  the  evidence  does 
not  establish  the  survivorship  of  any  one,  the  law  will  treat  it 
as  a  matter  incapable  of  being  determined.  The  onus  prohandi 
is  on  the  person  asserting  the  affirmative."  The  same  doctrine, 
of  non-presumption  of  survivorship,  prevails  in  America.  One 
claiming  through  a  survivorship  must  prove  the  survivorship; 
hence  in  the  absence  of  evidence  from  which  the  contrary  may 
be  inferred  all  may  be  considered  to  have  perished  at  the  same 
moment,  not  because  the  fact  is  presumed,  but  because,  from 
failure  to  prove  the  contrary  by  those  asserting  it,  property 
rights  must  necessarily  be  settled  on  that  theory,  and  descent 
and  distribution  take  the  same  course  as  if  the  deaths  had  been 
simultaneous.^ 

§  191.  Administration  on  the  Estates  of  Living  Persons.  — 
The  court  may  be  in  error  in  finding  that  a  man  is  dead,  and 
administer  on  his  estate.  Are  acts  under  such  an  administra- 
tion valid  against  the  man  who  returns  to  assert  his  rights? 

1  8  H.  L.  183. 

2  Young  Women's  Christian  Home  v.  French,  187  U.  S.  401. 


IGG  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  192 

It  is  agreed,  as  a  general  proposition,  that  the  finding  of  a 
court  as  to  jurisdictional  facts  is  not  open  to  collateral  attack ; 
and  its  application  to  the  case  where  a  probate  court  assumes 
jurisdiction  of  the  estate  of  a  deceased  person  which  properly 
belongs  to  another  probate  court  within  the  sovereignty  is 
discussed  ante,  §  180. 

In  Woerner  on  Administration,  §  211  of  the  First  Edition,  a 
powerful  argument  is  made  for  applying  the  same  principle 
to  the  case  of  a  person  erroneously  pronounced  dead  by  the 
probate  court. 

But  the  question,  as  our  author  admits,  is  authoritatively 
settled  by  a  series  of  decisions  in  the  State  courts  and  the  United 
States  Supreme  Court.  Such  proceedings  are  held  void  against 
the  person  erroneously  declared  dead.  The  jm'isdiction  is  said 
to  depend  on  the  fact  of  death.  Such  a  proceeding,  it  is  held, 
would  deprive  a  person  of  property  without  due  process  of  law.^ 

§  192.  Administration  on  Estates  of  Absent  Persons.  —  Admin- 
istration of  property  becomes  necessary,  as  we  have  seen,  when 
its  owner  is,  for  any  reason,  incapable  of  exercising  control  over 
the  same,  —  of  asserting  his  jus  disponendum.  The  practical 
reason  which  demands  the  interposition  of  the  State  is  fully  as 
strong  when  the  o^\^ner  of  personal  property  —  or  of  real  prop- 
erty liable  for  his  debts,  or  for  the  support  of  his  family  —  has 
voluntarily  or  by  compulsion  absented  himself,  so  that  it  is  be- 
yond his  power  to  provide  for  his  family  or  satisfy  his  creditors, 
as  if  he  were  dead,  insane,  or  a  minor.  But,  apart  from  stat- 
utes, the  law  does  not  provide  for  administration,  through  the 
probate  court,  of  the  estates  of  absent  persons.  Several  States 
pro\dde  by  statute  for  such  administration  on  the  estates  of 
absent  persons.  Where  such  statutes  are  reasonable  as  to  the 
period  of  absence  necessary  to  create  the  presumption  of  death, 
and  provide  proper  safeguards  for  the  protection  of  his  interests 
in  case  the  absentee  should  return,  they  do  not  violate  the  due 
process  clause  of  the  Federal  Constitution;  and  their  validity 
seems  to  be  established  by  the  great  weight  of  authority  .- 

1  Scott  V.  McNeal,  154  U.  S.  34. 

2  Cuimius  V.  School  District,  198  U.  S.  458,  disapproving  two  State 
decisions  to  the  contrary. 


§§  193-195]  OF  THE  PROBATE   OF  THE  WILL.  167 


CHAPTER  XXIV. 

OF  THE  PROBATE  OF  THE  WILL. 

§  193.  Necessity  for  Probate.  —  A  will  takes  its  legal  validity 
from  its  probate;  that  is,  the  certification  by  the  court  or  tri- 
bunal clothed  with  authority  for  such  purpose  that  it  has  been 
executed,  published,  and  attested  as  required  by  law,  and  that 
the  testator  was  of  sound  and  disposing  mind.  Without  sufch 
proof  it  is  not  a  will  in  the  legal  sense. 

The  will  may  dispose  of  real  estate,  or  of  personal  property, 
and  in  a  few  States  different  proof  or  a  difference  in  the  proce- 
dure to  obtain  the  probate  may  be  necessary  as  to  the  one  or  the 
other;  or  it  may  not  affect  property  at  all,  but  only  appoint  a 
guardian  for  a  minor  and  still  require  probate  to  give  it  validity. 

§  194.  Validity  of  Probate  in  Probate  Courts.  —  Pre\aous  to 
the  act  creating  the  Court  of  Probates,  no  will  or  testamentary 
paper  whatever  relating  to  personalty  could  be  established  or 
disputed  in  any  other  than  the  ecclesiastical  or  prescriptive 
manorial  courts  of  England;  these  courts,  however,  had  no 
jurisdiction  over  wills  affecting  real  estate,  —  their  sentences 
and  decrees  were  wholly  inoperative  as  to  such.  Under  the 
act  referred  to,  jurisdiction  to  take  probate  of  wills,  without 
distinguishing  between  them  on  the  ground  of  their  disposing 
of  real  or  personal  property,  is  vested  in  the  Court  of  Probate 
thereby  created.  This  power  had  long  before  been  exercised 
by  the  probate  courts  of  nearly  all  the  States;  the  distinction 
between  wills  of  realty  and  of  personalty  is  now  practically 
ignored  in  the  proceedings  to  obtain  probate,  except,  perhaps, 
in  Maryland  and  District  of  Columbia,  where  a  will  of  person- 
alty may  be  admitted  to  probate  in  the  Orphan's  Court,  and  on 
the  testimony  of  one  of  the  attesting  witnesses,  while  a  will  of 
real  estate  must  be  proved  by  the  testimony  of  all  of  them.  In 
some  of  the  States,  however,  there  is  still  a  distinction  observed 
as  to  the  conclusiveness  of  such  probate. 

§  195.    Production  of  the  Will  for  Probate.  —  In  many  States 


168  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  195 

the  judge  of  probate  or  register  of  wills  is,  by  statute,  made  the 
custodian  of  wills  deposited  with  him  to  that  end.  In  such 
States,  it  is  his  duty,  as  soon  as  he  receives  information  of  the 
death  of  any  testator  whose  will  he  has  in  custody,  to  institute 
proceedings  for  the  probate  thereof,  and  to  that  end  compel  the 
attendance  of  the  necessary  witnesses  to  prove  its  execution 
and  the  death  of  the  testator.  If  the  judge  of  probate  is  not  the 
custodian,  or,  being  so,  neglects  to  proceed  with  the  probate, 
it  is  the  duty  of  the  executor  nominated  in  the  will,  as  well  as 
of  any  other  person  who  may  have  it  in  possession,  to  produce 
it  for  probate.  The  time  fixed  by  law  for  such  production  is 
different  in  the  different  States,  varying  from  the  time  when  the 
custodian  shall  learn  the  testator's  death,  to  ten  days,  fifteen 
days,  thirty  days,  or  three  months,  after  the  day  on  which  he 
died.  Any  person  interested  in  a  will  may  demand  its  produc- 
tion and  probate. 

In  most  of  the  States  the  secreting,  witliliolding,  or  refusal 
to  produce  a  will  for  probate,  in  the  possession  of  the  executor 
or  other  person,  is  a  violation  of  the  law  subjecting  such  persons 
to  various  penalties. 

In  regard  to  the  time  within  which  a  will  is  allowed  to  be 
proved,  there  is  considerable  divergence  in  the  several  States, 
depending  on  their  statutes.  Thus  in  Maine,  Oregon,  and  Ten- 
nessee no  probate  can  be  granted  after  the  expiration  of  twenty 
years  from  the  testator's  death.  Again,  in  Indiana,  New  York, 
and  Ohio  bona  fide  purchasers  from  heirs  can  hold  against  de- 
visees if  the  will  has  not  been  produced  within  a  limited  period. 
From  a  case  in  Kentucky  it  would  appear  that  the  general  Stat- 
ute of  Limitations  is  there  applied  to  probating  wills.^  The 
ruling  seems  exceptional.  The  general  Statute  of  Limitations 
is  held  elsewhere  not  to  apply.  Thus  a  will  was  admitted  to 
probate  in  Illinois  thirteen  years  after  the  testator's  death,^ 
and  in  Massachusetts  sixty-three  years  thereafter.^  But  in 
this  connection  it  must  again  be  said  that  the  question  for  any 
particular  State  can  be  settled  only  by  consulting  its  statutes 
and  the  decisions  thereunder. 

^  Allen  V.  Freeman,  96  Ky.  313. 

2  Robbin  v.  Mueller,  114  111.  343. 

8  Haddock  v.  Boston  &  M.  R.  R.  Co.,  146  Mass.  155. 


§§  196-198]  OF  THE  PKOBATE   OF  THE  WILL.  169 

§  196.  Jurisdiction  for  Probate  in  Common  and  Solemn  Form. 
—  The  probate  may  be  in  the  "common,"  or  "non-contentious" 
form,  granted  upon  the  affidavit  of  the  appHcant  showing  the 
testator's  domicile  and  death;  or  it  may  be  in  the  "solemn," 
or  "contentious  "  form,  upon  citation  to  the  widow  and  next 
of  kin,  and  a  regular  trial. 

Courts  of  probate  have  original  exclusive  jurisdiction  in  all 
of  the  States  to  take  probate  of  wills  in  common  form.  In  some 
States,  where  notice  to  the  widow  and  next  of  kin  is  required 
even  in  this  form  of  proof,  the  probate  obtained  in  the  probate 
court  seems  to  have  all  the  force  and  validity  of  a  proof  in 
solemn  form,  and  is  conclusive,  both  as  to  real  and  personal 
estate,  if  not  appealed  from  or  annulled  in  equity  for  fraud,  or 
some  cause  which  gives  equity  jurisdiction  over  judgments  at 
law. 

But  elsewhere  parties  interested  after  the  will  is  established 
in  common  form  can  demand  proof  afresh  in  solemn  form.  In 
a  number  of  States  the  probate  court  has  jmisdiction  over  the 
proof  in  solemn  form,  but  in  most  of  them  the  probate  originally 
obtained  ex  parte  or  in  common  form,  in  the  probate  court,  may 
be  contested  either  in  chancery,  or  by  action  in  a  court  of  law; 
and  the  proceedings  in  such  court  constitute  the  proof  in  solemn 
or  full  form,  or,  as  is  sometimes  said,  per  testes} 

§  197.  Jurisdiction  over  Probate  of  Lost  Wills. — The  probate  of 
wills  lost,  suppressed,  or  destroyed  is  ordinarily  within  the  juris- 
diction of  probate  courts,  as  coming  within  the  scope  of  their 
general  jurisdiction.  But  in  most  of  the  United  States  chancery 
courts  exercise  the  power  to  establish  wills  on  the  ground  that 
they  have  been  lost,  suppressed,  or  destroyed,  and  the  juris- 
diction in  such  cases  seems  to  be  concurrent,  unless  the  statute 
restricts  the  jurisdiction  to  one  of  these  courts. 

§  198.  Method  of  Proof  in  Common  Form.— The  probate  of  a 
will  in  common  form  is  in  its  nature  ex  parte,  without  notice  to 
any  one  interested  in  or  against  it,  and  resting,  in  some  States, 
upon  the  evidence  or  affidavit  of  a  single  witness,  which  in  some 
instances  may  be  the  executor  or  proponent  himself.  It  "ap- 
plies only  for  convenience,  expedition,  and  the  saving  of  ex- 
pense, where  there  is  apparently  no  question  among  the  parties 
*  See  Woerner  on  Administration,  §  215. 


170  THE   LAW   OF  DECEDENTS'   ESTATES. 


19S 


interested  in  the  estate  that  the  paper  propounded  is  the  gen- 
uine last  will  and  as  such  entitled  to  probate.  For  contentious 
business  before  the  court,  probate  in  common  form  would  be 
quite  unsuitable."^  According  to  the  English  ecclesiastical 
practice,  in  which  this  form  of  probate  originated,  a  will  is 
proved  when  the  executor  presents  it  before  the  judge  and  pro- 
duces more  or  less  proof  that  the  testament  presented  is  the 
true,  whole,  and  last  testament  of  the  deceased,  whereupon  the 
judge  passes  the  instrument  to  probate,  and  issues  letters  testa- 
mentary under  the  official  seal.  Under  the  Court  of  Probate 
Act  the  executor  may  at  his  pleasure  prove  the  will  in  common 
or  in  solemn  form,  the  difference  in  effect  being  that  the  probate 
in  common  form  may  be  impeached  at  any  time  within  thirty 
years  by  a  person  having  an  interest,  whereupon  the  executor 
will  be  compelled  to  prove  it  per  testes  in  solemn  form;  whereas, 
if  once  proved  in  solemn  form  of  law,  the  executor  is  not  to  be 
compelled  to  prove  the  same  any  more,  and  the  instrument  re- 
mains in  force,  although  all  the  witnesses  be  dead. 

According  to  the  practice  in  American  probate  courts,  a 
similar  course  is  pursued  in  most  of  the  States;  usually,  the 
executor  (but  it  may  be  any  other  person  having  an  interest) 
presents  the  will,  and  sets  forth  in  a  petition  (which  may  be  a 
printed  blank  provided  for  such  purpose)  the  facts  of  the  death 
of  the  testator,  his  last  domicile,  the  names  and  places  of  resi- 
dence of  the  surviving  widow  or  husband,  if  there  be  such,  and 
of  the  next  of  kin;  and  alleging  that  the  paper  or  papers  pre- 
sented constitute  the  last  will  of  the  deceased,  prays  for  the 
probate  thereof  and  for  appointment  of  executor  or  adminis- 
trator, as  the  case  may  be.  It  is  held  in  some  of  the  States, 
as  has  already  been  mentioned,  that  proof  may  be  made  by  a 
single  subscribing  witness;  but  in  most  of  them  the  testimony 
of  both  or  all  subscribing  witnesses  is  required,  if  they  are 
living  and  within  the  reach  of  the  process  of  the  court.  Whether 
the  will  be  proved  by  the  testimony  of  one  or  all  of  the  witnesses, 
or  by  the  affidavit  of  the  executor,  or  by  other  witnesses,  the 
facts  necessary  to  be  proved  are  in  all  instances  the  same;  that 
the  testator  was  of  sound  mind,  and  that  he  and  the  subscrib- 
ing witnesses  complied  with  all  the  requirements  of  the  statute 

1  Schoul.  Ex.  §  66. 


§§  199,  200]  OF  THE   PROBATE   OF  THE   WILL.  171 

respecting  the  execution  and  attestation  by  the  requisite  num- 
ber of  witnesses.  The  essential  quaUties  of  a  will  have  been  con- 
sidered in  a  former  chapter  of  this  work,  to  which  reference 
is  hereby  made.^ 

§  199.  The  Probate  in  Solemn  Form.  —  While  the  proof  in 
common  form  is  ex  jmrte,  in  the  proof  in  solemn  form  all  persons 
interested  in  the  will,  as  well  as  all  persons  who  in  the  absence 
of  a  will  would  be  entitled  to  inherit,  must  be  made  parties  by 
service  of  personal  notice  or  by  publication,  unless  they  vol- 
untarily appear.  Creditors  of  the  deceased  as  such  are  not 
made  parties,  since  their  interests  are  not  affected  whether  the 
will  stand  or  fall. 

The  difference  in  the  result  of  these  two  forms  of  proof  is 
this:  The  proof  in  common  form,  while  good  as  long  as  it  is 
not  questioned,  is  virtually  set  aside  by  demand  for  proof  in 
solemn  form;  whereas  the  proof  in  solemn  form  is  an  ultimate 
judgment. 

In  the  mode  of  proving  the  will  there  is  the  distinction  that 
in  proof  in  solemn  form  all  attesting  witnesses  competent  to 
testify  and  within  reach  of  the  process  of  the  court  must  be 
examined;  though  this  is  not  insisted  on  in  some  States:  in 
proof  in  common  form,  on  the  other  hand,  this  requirement  is 
generally  not  made.  In  a  few  States  this  distinction  fails.  It  is 
there  necessary  to  produce  all  accessible  subscribing  witnesses 
for  proof  in  common  form. 

Parties  are  generally  entitled  to  a  jury  when  the  will  comes 
up  for  proof  in  solemn  form.  This  is  not  true  of  the  proof  in 
common  form. 

§  200.  Contest  of  Probate.  —  The  ex  parte  probate  cannot  be 
attacked  in  a  collateral  proceeding,  but  only  in  a  direct  pro- 
ceeding brought  to  annul,  set  aside,  or  revoke  such  probate. 
This  may  be  by  appeal  from  the  decree  establishing  or  reject- 
ing the  probate,  by  any  person  interested  in  the  will,  but  which 
since  the  right  thereto  is  purely  statutory  must  be  piu-sued  in 
strict  compliance  with  the  requirements  of  the  statute;  or  it 
may  be  by  contest,  which  any  interested  person  may  institute 
who  was  not  a  party  to  the  original  proceeding  resulting  in  the 
probate  or  rejection  of  the  will,  or  in  some  States  even  by  one 
1  Ante,  §§  26-43. 


1~-  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  200 

who  was  a  party,  had  either  in  the  court  which  granted  the 
probate,  or  in  a  superior  court  of  law,  or  in  a  court  of  chancery, 
as  may  be  provided  by  statute.  These  proceedings  are  in  mok 
instances  limited  to  a  given  period  of  time  after  which  the  pro- 
bate becomes  absolutely  conclusive. 

The  original  or  ex  jmrte  probate  is  in  rem.  But  on  a  contest 
"whenever  a  controversy  in  a  suit  between  the  parties  arises 
respecting  the  validity  of  the  will"  it  becomes  in  some  respects 
inter  imrtcs,^  requiring  notice  to  all  parties  interested  in  the  will 
or  against  it.  In  other  respects  these  proceedings,  also,  are  in 
rem,  the  issue  being  will  or  no  will;  and  though  as  in  some  States 
such  contest  be  regarded  in  the  nature  of  an  appeal  and  trial 
de  novo,  and  be  considered  an  action  at  law  (partaking  in  some 
respects  however  of  a  proceeding  in  equity)  and  effect  given  to 
the  verdict  of  the  jury  accordingly,  yet  the  court  must  proceed 
either  to  establish  or  reject  the  will.  Hence  the  contestant 
cannot  be  permitted  to  dismiss  or  to  take  a  voluntary  non-suit; 
nor,  for  the  same  reason,  can  contestant  be  compelled  to  give 
security  for  costs;  nor  can  the  issue  be  varied  or  restricted  by 
averments  in  the  pleadings  or  by  the  consent  or  acquiescence 
of  the  parties;  nor  can  the  parties  by  stipulation  authorize  a 
Judgment  whereby  the  will  is  annulled  as  to  some  and  not  others; 
nor  can  the  contest  be  determined  by  stipulation,  at  least  not 
where  one  of  the  beneficiaries  is  not  sui  juris.  But  the  contest  of 
probate  may  be  confined  to  a  part  of  the  will,  when  such  part 
only  is  attacked  as  having  been  made  under  undue  influence  or 
obtained  by  fraud;  so  also  when  a  will  is  annulled  at  the  in- 
stance of  one  in  whose  favor  a  longer  time  is  given  to  make  con- 
test by  reason  of  his  having  been  under  disability,  the  will  must 
be  set  aside  as  an  entirety,  and  the  action  enures  to  the  benefit 
of  all  others  interested,  though  as  to  them  the  time  within  which 
the  will  could  be  attacked  has  elapsed;  but  on  this  point  the  con- 
trary has  also  been  held. 

This  right  to  contest  the  validity  of  a  probate  granted,  in  the 
method  pointed  out  by  the  statute,  may  be  exercised  by  any 
person  whose  interests  are  substantially  affected  by  the  will  so 
established,  whether  domestic  or  foreign.  But  since  a  person 
cannot  hold  under  a  will  and  also  against  it,  one  who  accepts 
a  beneficial  interest  under  a  will  thereby  bars  himself  from 


§  201]  OF  THE  PROBATE   OF  THE  WILL.  173 

setting  up  a  claim  which  will  prevent  its  full  operation,  at  law 
or  in  equity;  and  such  person  will  not,  therefore,  be  allowed  to 
contest  a  will,  unless  he  has  acted  in  ignorance  of  his  rights, 
and,  restoring  conditions  in  statu  quo  ante,  he  return  without 
unreasonable  delay  the  benefits  received.  A  creditor  of  the 
decedent  is  not  a  party  in  interest  so  as  to  authorize  him  to 
invoke  the  power  to  revoke,  annul,  or  contest  the  probate  of  a 
will,  nor  one  who  is  incapacitated  to  take  by  descent  from  the 
decedent;  nor  a  purchaser  from  an  heir,  after  the  probate. 
Neither,  for  the  same  reason,  can  such  proceedings  be  instituted 
by  the  general  creditor  of  a  disinherited  heir,  although  it  is 
held  that  a  judgment  or  lien  creditor  of  the  heir,  whose  lien 
rights  in  the  property  itself  would  be  cut  off  by  the  probate, 
is  a  party  in  interest  who  may  contest  the  validity  of  the  will 
of  the  ancestor  of  the  heir.  Neither  can  the  widow,  who  is  en- 
titled to  take  against  the  will  as  in  case  of  intestacy,  (although 
she  could  in  such  case  administer)  contest  the  will;  nor  where  one 
is  given  by  the  Avill  precisely  the  same  interest  he  takes  by  de- 
scent in  case  of  intestacy.  Such  right  to  contest  can  only  be 
exercised  by  one  having  a  pecuniary  interest  in  the  estate,  and 
in  some  States,  as  above  stated,  by  such  persons  only  as  were 
not  made  parties  to  the  original  proceedings  resulting  in  the 
probate  or  rejection. 

§  201.  Proof  v/hen  Testimony  of  Subscribing  Witness  cannot  be 
obtained.  —  It  is  self-evidently  indispensable  to  achnit  aliunde 
evidence  to  prove  the  will,  if  any  one  or  more  of  the  attesting 
witnesses  are  dead,  insane,  or  cannot,  for  any  reason,  be  com- 
pelled or  permitted  to  testify  on  the  probate  thereof.  Thus 
where  one  of  the  attesting  witnesses  is  probate  judge,  the  will 
may  be  proved  by  the  other  witnesses;  where  any  of  them  are 
dead,  insane,  or  incompetent  to  testify,  or  where  their  place 
of  residence  or  whereabouts  is  unknown,  so  that  their  testimony 
cannot  be  obtained,  proof  may  be  made  of  their  handwriting, 
and  of  the  handwriting  of  the  testator,  and  the  will  admitted 
to  probate  upon  such  proof.  But  in  order  to  make  such  testi- 
mony admissible,  it  must  be  shown  that  it  is  impossible  to  ob- 
tain that  of  the  subscribing  witnesses,  either  by  taking  their  de- 
positions, as  is  provided  for  in  some  States  in  case  of  attesting 
witnesses  being  beyond  the  reach  of  the  process  of  the  court, 


174  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  202 

or  b}^  securing  their  personal  attendance.  \Miere  the  statute 
does  not  authorize  the  taking  of  the  depositions  of  subscribing 
witnesses,  secondary  evidence  is  admissible,  upon  proof  of  their 
being  beyond  reach  of  process  of  the  court  in  which  proceedings 
are  pending.  In  all  such  cases  the  absence  of  the  witnesses 
must  be  satisfactorily  accounted  for,  after  proof  of  such  diligence 
in  the  search  for  them  and  endeavor  to  obtain  their  testimony 
as  is  required  ordinarily  before  evidence  of  a  secondary  nature 
is  admitted. 

For  the  same  reason  the  validity  of  a  will  cannot  be  permitted 
to  rest  upon  the  veracity  or  memory  of  the  attesting  witnesses: 
to  do  so  would  be  subversive  of  justice  and  destructive  of  the 
rights  of  the  testator  as  well  as  of  the  beneficiaries  under  the 
will.  Hence  a  will  may  be  established  although  some  or  all  of 
the  subscribing  witnesses  fail  to  remember  the  essential  facts 
to  be  proved,  or  where  their  testimony,  biased  by  prejudice, 
interest,  or  ill  will,  negatived  such  facts.  It  is  held  that  where 
there  is  a  failure  of  recollection  by  the  subscribing  witnesses, 
the  probate  of  the  will  cannot  be  defeated  if  the  attestation 
clause  and  the  surrounding  circumstances  satisfactorily  estab- 
lish its  execution.^  The  testimony  of  an  attesting  witness  in- 
validating a  will  ought  to  be  viewed  with  suspicion,  because 
such  person  by  his  act  of  attestation  solemnly  testifies  to  the 
sanity  of  the  testator;  it  was  said  that  no  fact  stated  by  such  a 
witness  can  be  relied  on  when  he  is  not  corroborated  by  other 
witnesses.  But  of  whatever  effect  the  recitals  in  the  attesta- 
tion clause  may  be  where  the  witness  fails  to  remember  what 
occurred,  they  are  not  sufficient  to  outweigh  his  positive  state- 
ments in  contradiction  thereof. 

§  202.  Witnesses  disqualified  by  Interest.  —  In  discussing  the 
qualifications  of  the  witnesses  who  subscribe  the  will  it  was 
pointed  out  that  the  statutory  provision,  now  almost  universal, 
abrogating  the  common-law  disqualifications  of  witnesses  gen- 
erally on  account  of  interest,  did  not  apply  to  those  witnesses 
who  subscribe  the  will.^  The  competence  of  interested  parties, 
apart  from  subscribing  witnesses,  to  testify  in  will  contests,  is 
determined  by  the  statutes  of  the  several  States,  and  is  not  a 

»  Rugg  V.  Rugg,  83  N.  Y.  592,  594. 
2  Arne,  §  38. 


§§  203,  204]  OF  THE   PROBATE   OF  THE  WILL.  175 

subject  for  discussion  here,  save  as  such  witnesses  are  called  on 
to  perform  the  part  of  attesting  witnesses,  that  is,  prove  the 
execution  of  the  will.  In  some  States  the  legatees  and  heirs 
at  law,  in  a  contest  to  set  aside  a  will,  are  not  competent  wit- 
nesses to  show  the  testamentary^  incapacity  of  the  testator; 
in  others  they  are  held  competent  witnesses  to  the  testator's 
capacity. 

There  seems  to  be  no  reason  why  a  legatee  or  other  person 
interested  in  the  will  should  not  be  competent  to  testify  against 
a  will,  on  the  same  ground  which  renders  an  heir  competent 
to  testify  in  its  favor,  where  his  interest  is  diminished  by  the 
probate  of  the  will.  So  the  incompetency  of  the  deceased's 
attorney  or  physician  to  testify  to  professional  communications 
is  waived  by  the  testator's  request  to  him  to  sign  as  an  attesting 
witness;  and  it  is  generally  held  that  the  executor  may  waive 
the  statutory  inhibition  against  such  testimony  by  the  testator's 
physician. 

§  203.  Proof  of  the  Testator's  Sanity.  —  Attention  has  been 
called  to  the  conflict  of  authority  as  to  where  the  bm-den  of 
making  -prima  facie  proof  on  the  issue  of  sanity  hes.  How  far 
the  non-expert  witness  can  ex-press  his  opinion  as  to  the  testa- 
tor's sanity  generally  has  also  been  discussed.^  In  this  connec- 
tion it  may  be  observed  that  the  rule  of  evidence  limiting  the 
witness  to  the  statement  of  concrete  facts,  and  excluding  all 
expression  of  conclusions  therefrom,  so  often  applied  in  trials 
with  irritating  narrowness  on  other  issues,  is  liberally  construed 
in  will  contests. 

§  204.  Proof  of  Lost  Wills.  —  The  presumption  arising,  where 
a  will  which  was  in  the  possession  of  the  deceased  cannot  be 
found  at  the  time  of  his  death,  that  it  was  destroyed  by  the 
testator  animo  revocandi,  may  be  rebutted  by  proof  that  it  was 
destroyed  after  his  death,  or  during  his  lifetime  without  his 
knowledge  or  consent;  or  by  the  testator  himself  while  he  was 
under  the  fraudulent  influence  of  another,  or  in  a  fit  of  insanity, 
when  he  was  incapable  of  understanding  the  nature  and  effect 
of  his  act,  and  such  a  will  may,  upon  positive  proof  of  destruc- 
tion, or  of  diligent  search  and  non-existence,  be  admitted  to 
probate. 

»  Ante,  §  20. 


17G  THE  LAW   OF  DECEDENTS'   ESTATES.  [§  204 

The  presumption  of  destruction  anirno  revocandi  may  be 
rebutted  by  such  evidence  as  produces  a  moral  conviction  to 
the  contrary,  and  the  acts  and  declarations  of  the  testator  are 
admissible  for  such  purpose.  So  also  it  may  be  proved  by  cir- 
cumstantial evidence  that  the  will  has  been  lost  or  destroyed 
without  the  knowledge  of  the  testator.  Where  a  will  is  detained 
by  a  foreign  court,  so  that  the  proponent  cannot  produce  it 
for  probate,  secondary  evidence  thereof  is  admissible,  as  much 
so  as  if  it  were  a  lost  will. 

The  execution  and  attestation  of  the  lost  wall  must  be  proved 
with  the  same  certainty  and  fulness  as  in  case  of  proving  an 
existing  will,  including  proof  of  the  testator's  sanity  or  testa- 
mentary capacity;  and  by  the  same  witnesses  which  are  re- 
quired to  prove  a  will  produced  for  probate.  Thus  the  sub- 
scribing witnesses  must  be  called,  if  within  reach  of  the  process 
of  the  court;  and  if  not,  depositions  of  such  as  may  be  reached 
must  be  taken,  and  if  the  law  does  not  require  the  depositions 
of  witnesses  residing  abroad,  then  proof  may  be  taken  as  in 
case  of  the  death  or  insanity  of  subscribing  witnesses. 

The  contents  of  the  lost  wall  upon  which  probate  is  prayed 
must  be  proved  clearly  and  distinctly,  with  a  sufficient  degree 
of  certainty  to  establish  the  legacies  and  devises,  and  that  none 
have  been  omitted.  It  was  laid  down  by  Swinburne,  that,  "if 
there  be  two  unexceptionable  witnesses  who  did  see  and  read 
the  testament  written,  and  do  remember  the  contents  thereof, 
these  two  witnesses,  so  deposing  to  the  tenor  of  the  will,  are 
sufficient  for  the  proof  thereof  in  form  of  law; "  but  it  seems  now 
to  be  held  in  England  that  the  contents  of  a  lost  will,  like  those 
of  any  other  instrument,  may  be  proved  by  secondary  evidence; 
that  they  may  be  proved  by  the  evidence  of  a  single  witness, 
though  interested,  whose  veracity  and  competency  are  unim- 
peached.  In  the  absence  of  statutory  provisions  on  this  subject 
this  is  recognized  in  the  several  States  to  be  the  law,  at  least 
to  the  extent  of  establishing  the  contents  by  the  testimony  of  a 
single  witness.  The  rule  that,  where  one  destroys  a  ^mtten 
instrument,  an  innocent  party  will  not  be  required  to  make 
strict  proof,  in  a  judicial  inquiry  concerning  its  contents,  against 
the  spoliator,  is  sometimes  applied  to  a  will;  where  part  of  the 
heirs  of  a  testator  connive  at  the  destruction  of  his  will,  an 


§  205]  OF  THE   PROBATE   OF  THE  WILL.  177 

innocent  legatee  may  obtain  probate  of  the  same  upon  proof  in 
general  terms  of  the  disposition  which  the  testator  made  of  his 
property,  and  that  the  instrument  purported  to  be  his  will  and 
was  duly  attested  by  the  requisite  number  of  witnesses. 

It  appears  from  a  discussion  on  the  revocation  of  wills,  in  a 
former  chapter,  that  the  execution  of  a  later  will  inconsistent 
with  a  former  one  operates  as  a  revocation  of  the  former  will, 
though  the  revoking  will  is  not  produced. 

It  seems  to  result  from  the  necessity  of  proving  the  contents 
of  a  lost  will  with  sufficient  certainty  and  clearness  to  admit  of 
their  legal  construction,  that  a  part  only  of  a  lost  or  destroyed 
will  where  other  parts  cannot  be  proved,  or  where  it  is  not  known 
whether  the  instrument  contained  other  or  contradictory  pro- 
visions, cannot  be  admitted  to  probate.  It  is  so  held  in  several 
States.  But  in  others,  isolated  portions  of  lost  wills  clearly 
proved  have  been  established,  although  other  portions  could  not 
be  proved.^  The  subject  of  proving  lost  wills  is  now  regulated 
by  statute  in  many  of  the  States. 

§  205.  Proof  of  WUls  in  Part.  —  Although  it  is  not  the  prov- 
ince, of  the  court  of  probate  to  pass  upon  or  determine  the  legal 
validity  of  the  provisions  of  a  will,  or  whether  they  are  rational 
and  capable  of  being  carried  into  effect,  yet  it  becomes  neces- 
sary sometimes  to  admit  the  will  to  probate  in  part,  and  reject 
it  in  part.  For  if  a  court  of  probate  be  satisfied  that  a  particular 
clause  has  been  inserted  by  fraud,  in  the  lifetime  of  the  testator, 
without  his  knowledge,  or  by  forgery,  after  his  death,  or  that  he 
has  been  induced  by  fraud  or  undue  influence  to  make  it  a  part 
of  his  will,  probate  wall  be  granted  of  the  instrument,  with  the 
reservation  of  that  clause.  And  so  where  a  page  is  torn  from 
an  executed  will  and  another  substituted  without  re-execution, 
the  wall,  as  originally  executed,  will  be  admitted  to  probate; 
the  contents  of  the  destroyed  page  being  proved  by  competent 
testimony,  no  effect  being  given  to  the  invalid  substituted  page. 
Or  where  a  clause  is  inadvertently  introduced  in  a  testamentary 
paper,  which  the  testator  has  not  directed  to  be  inserted,  and 
he  executes  the  paper,  not  having  been  read  over  to  him,  pro- 
bate will  be  granted  of  the  remainder  of  the  paper,  omitting 

*  This  is  specially  permitted  as  against  the  spoliator  of  a  will  in  favor 
of  an  innocent  legatee:  Jones  v.  Casler,  139  Ind.  382,  393. 


178  THE   LAW  OF  DECEDENTS'  ESTATES.  [§  206 

such  clause.  So  while  a  document  referred  to  in  the  will  and 
shown  to  have  been  in  existence  at  the  time  of  its  execution, 
and  which  is  clearly  identified  as  the  document  to  which  refer- 
ence was  made  by  the  testator,  may  be  adjudged  to  form  part 
of  such  will,  yet  if  such  extraneous  paper  be  not  in  existence 
at  the  time  of  the  execution  of  the  will,  it  is  not  entitled  to 
probate  as  part  of  the  will,  though  the  will  be  admitted  to 
probate. 

This  principle  of  probate  in  part  has  been  extended  to  cases 
in  which  part  of  a  destroyed  will  only  could  be  proved,  and  pro- 
bate granted  as  to  so  much  of  such  will ;  and  relied  on  as  justi- 
fying the  rejection  of  clauses  held  void  as  being  inconsistent 
with  public  policy,  or  impossible  of  execution,  while  the  re- 
mainder of  the  will  was  admitted  to  probate.  But  this  seems 
inconsistent  with  the  functions  of  a  court  of  probate,  which 
determines  only  whether  the  instrument  propounded  has  been 
executed  by  the  testator  and  attested  by  the  witnesses  in  the 
manner  prescribed  by  the  statute,  and  that  he  possessed  suffi- 
cient testamentary  capacity,  —  in  other  words,  whether  the 
instrument  is  the  testator's  spontaneous  act,  expressing  his  last 
will  in  the  form  recognized  by  law.  Its  approval  of  the  will 
relates  only  to  the  form:  void  bequests  are  not  validated  there- 
by, nor  should  the  probate  distinguish  between  valid  and  void, 
certain  and  uncertain,  rational  or  impossible,  dispositions  of 
the  testator.  All  such  questions  are  for  the  courts  of  construc- 
tion, which  are  bound  by  the  judgments  of  courts  of  probate 
only  as  to  the  due  execution.  Hence,  although  the  court  of 
probate  may  reject  such  portions  of  the  paper  as  are  not  the 
testator's  spontaneous  act  or  will,  it  cannot,  even  by  consent, 
order  any  passage  to  be  expunged  which  the  testator,  being  of 
sound  mind,  intended  to  form  part  of  it. 

Several  testamentary  papers  and  codicils  may  together  con- 
stitute the  last  will  of  the  testator,  and  should  all  receive  pro- 
bate together,  as  constituting  one  will. 

§  206.  Probate  in  Fac-simile.  —  The  effect  of  interlineations 
and  erasures  in  a  will  have  been  pointed  out  in  an  earlier  chap- 
ter. Where  alterations  are  satisfactorily  shown  to  have  been 
made  before  execution,  it  is  usual  to  engross  the  probate  copy 
of  the  will  as  altered,  inserting  the  words  interlined  in  their 


§  207]  OF  THE   PROBATE   OF  THE  WILL.  179 

proper  places,  and  omitting  words  struck  through  or  obhter- 
ated.  But  in  cases  where  the  construction  of  the  will  may  be 
affected  by  the  appearance  of  the  original  paper,  the  court  will 
order  the  probate  to  pass  in  facsimile,  so  as  to  assist  the  court 
of  construction  in  finding  the  meaning  of  the  testator.  This  is 
obviously  of  great  importance  where  the  will  is  to  receive  con- 
struction in  a  court  different  from  that  which  grants  the  probate, 
and  the  court  of  construction  is  denied  access  to  the  original  will. 

§  207.  Testator's  Declarations  as  Evidence  in  Probate  of  Will.  — 
The  conversations,  statements,  and  declarations  of  the  testator 
are  always  admissible  on  the  question  of  his  testamentary  ca- 
pacity, since  they  are  the  most  direct  manifestations  of  his  men- 
tal condition;  their  value  as  evidence  being,  in  this  respect, 
fully  equal,  if  not  superior,  to  that  of  his  acts,  conduct,  be- 
havior, or  appearance.  Many  phases  of  insanity  —  delusions, 
hallucinations,  and  the  like  —  are  capable  of  proof  by  this 
means  only.  Hence  great  latitude  is  allowed  in  proving  decla- 
rations, acts,  and  statements  of  a  testator,  sometimes  extending 
over  many  years,  to  establish  the  status  of  his  mind  when  he 
made  his  will.  Of  course  the  declarations  are  not  competent 
to  prove  the  truth  of  the  matter  stated  in  them,  and  when  the 
content  of  a  statement  or  declaration  concerns  a  fact  in  issue 
in  the  proceeding,  the  jury  should  be  cautioned  on  this  point. 
Diaries  kept  and  letters  wTitten  by  a  testator,  either  before  or 
after  the  execution  of  the  will,  are,  like  his  verbal  declarations, 
proper  evidence  as  bearing  upon  his  mental  capacity,  and  the 
condition  of  his  mind  with  reference  to  objects  of  his  bounty, 
but  not  competent  to  prove  the  facts  stated  in  them.^ 

Another  question  is  presented  when  the  declarations  of  the 
deceased  are  offered,  not  to  show  the  condition  of  the  testator's 
mind,  in  which  case  the  truth  of  the  statement  is  not  involved, 
but  as  e\'idence  of  the  fact  stated,  as  bearing  on  the  main  issue. 
Where  for  instance  the  issue  is  undue  influence  or  whether  the 
propounded  will  is  a  forgery,  declaration  of  the  testator  that  he 
had  never  made  a  will,  uttered  subsequent  to  the  alleged  exe- 
cution of  the  document  under  investigation,  are  not  offered  to 
show  the  mental  state  of  the  deceased,  but  are  admissible  if 

^  See  Woemer  on  Administration,  §  225,  and  numerous  cases  there 
cited. 


ISO  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  20S 

at  all  for  the  sole  purpose  of  establishing  the  fact  stated  by  the 
deceased.  When  the  testator's  declarations  are  thus  offered 
upon  the  issue  of  undue  influence,  fraud,  or  forgery  in  the  mak- 
ing of  the  will,  the  authorities  are  not  in  accord.  In  the  lead- 
ing case  of  Sugden  v.  St.  Leonards  ^  the  testator's  declarations 
were  admitted  to  establish  the  provisions  of  a  lost  will.  In 
Throckmorton  v.  Holt^  on  an  issue  as  to  the  forgery  of  a  proffered 
vnW,  evidence  of  the  testator's  declarations  wholly  inconsistent 
with  the  provisions  of  the  document  in  question  (thus  tending 
to  show  that  it  was  not  his  will)  were  rejected.  A  full  collection 
of  authorities  on  both  sides  will  be  found  in  the  latter  case. 

Clearly  the  physical  fact  of  revocation  of  a  will  cannot  be 
proved  by  declarations  of  the  testator.  His  expressions  of  ap- 
proval or  dissatisfaction  have  been  held  admissible  in  several 
cases  as  bearing  on  his  intention  in  destroying  the  will,  or  prov- 
ing that  a  lost  will  is  not  revoked.  This  is  but  a  phase  of  the 
question  whether  a  testator's  declarations  are  receivable  to 
prove  his  intentions,  and  the  rulings  seem  in  conflict  with 
Throckmorton  v.  Holt. 

§  208.  Admissions  by  Beneficiaries  under  Will.  —  In  will  con- 
tests the  question  arises  whether  admissions  by  beneficiaries 
under  the  will,  tending  to  show  lack  of  capacity  in  the  testator 
or  the  exercise  of  undue  influence  over  him,  should  be  received 
in  e\idence.  Such  admissions  against  interest  should  clearly  be 
received  where  the  person  maldng  them  is  the  only  one  seeking 
to  uphold  the  will.  So  too  if  there  is  a  showing  of  a  conspiracy 
to  procm-e  the  will  among  all  the  beneficiaries,  admissions  by 
one  of  the  conspirators  during  the  conspu*acy  can  be  offered 
in  evidence  against  all  on  a  well-settled  rule  of  evidence. 

But  the  beneficiaries  under  a  propounded  will  have  no  joint 
interest  in  the  legal  sense  of  the  term ;  and  the  rule  is  clear  that 
the  admissions  by  one  cannot  be  used  against  others  on  the 
same  side  unless  the  interest  is  joint.  The  admissions  of  one 
beneficiary  should  not  injmiously  affect  others.  Since  the  issue 
is  merely  will  or  no  will,  such  admission  must  affect  all  claim- 
ants under  the  will,  and  cannot  be  limited  to  the  person  maldng 
the  admission.    It  is  accordingly  held  by  the  weight  of  authority 

1  L.  R.  1  Prob.  Div.  154. 

2  ISO  U.  S.  572,  585. 


§  209]  OF  THE   PROBATE   OF  THE   WILL.  181 

that  the  admissions  of  one  of  several  beneficiaries  are  not  re- 
ceivable in  evidence  in  a  suit  as  to  the  establishment  of  a  will, 
save  in  case  of  a  conspiracy  involving  all  beneficiaries. 

§  209.  Wills  proved  in  Foreign  Jurisdiction.  —  The  principle 
requiring  the  title  and  disposition  of  real  property  to  be  governed 
exclusively  by  the  law  of  the  country  or  state  in  which  it  is 
situated,  —  lex  loci  rei  sifce,  —  and  that  requiring  personal  prop- 
erty to  follow  the  law  of  the  owner's  domicile,  —  lex  domicilii, 
—  together  with  the  extra-territorial  invalidity  of  municipal 
laws  and  regulations,  have  heretofore  produced  considerable 
divergence  in  respect  of  wills  which  have  been  executed  and 
admitted  to  probate  in  sister  States  or  foreign  countries,  and 
operate  upon  property  situated  within  the  jurisdiction  of  the 
forum  where  they  are  sought  to  be  enforced.  It  is  now  a  fully 
established  rule  in  England,  that  in  order  to  sue  in  any  court  of 
law  or  equity,  in  respect  of  the  personal  rights  or  property  of  a 
deceased  person,  the  plaintiff  must  appear  to  have  obtained 
probate  of  the  will,  or  letters  of  administration  in  the  court  of 
probate  there;  and  this  is  so  in  America  in  all  the  States  with 
the  exception  of  those  in  which  the  statutes  confer  certain 
powers  upon  foreign  executors  and  administrators,  which  may 
be  exercised  by  virtue  of  such  statutory  regulations,  or  give 
validity  to  a  foreign  probate.  It  follows  that  a  will  made  in 
another  State  or  foreign  country,  and  proved  there,  disposing 
of  property  elsewhere,  must,  except  in  the  States  holding  as 
above,  also  be  proved  in  the  State  where  the  property  is  situ- 
ated, or  com-ts  cannot  enforce  the  provisions  of  such  will. 

Generally,  the  court  in  which  the  will  is  to  be  proved  anew 
will  adopt  the  decision  of  the  court  in  the  foreign  country  where 
the  testator  died  domiciled  as  to  the  probate  of  a  will  disposing 
of  personal  property;  for  it  is  a  clearly  established  rule,  that 
the  law  of  the  country  in  which  the  deceased  was  domiciled 
at  the  time  of  his  death  not  only  decides  the  course  of  distribu- 
tion or  succession  as  to  personalty,  but  regulates  the  decision 
as  to  what  constitutes  the  last  will  without  regard  to  the  place 
either  of  birth  or  death,  or  the  situation  of  the  property  at  that 
time.  In  most  States  it  is  provided  by  statute  that  the  will  of 
a  non-resident,  admitted  to  probate  according  to  the  law  of  the 
State  in  which  he  resided  at  the  time  of  his  death,  may  be  ad- 


1S2  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  209 

mitted  to  probate  upon  the  production  of  a  duly  authenticated 
copy  thereof  together  with  the  probate,  without  other  proof  or 
notice.  In  other  States  notice  is  required  to  be  given  to  persons 
interested. 

In  many  States  it  is  affirmatively  provided  that  the  foreign 
probate  is  conclusive  only  in  so  far  as  the  will  concerns  personal 
property;  to  pass  title  to  real  estate,  it  must  appear,  either  by 
proof  furnished  in  the  forum  loci  rei  sitcB,  or  by  the  authenticated 
copy  of  the  evidence  upon  which  the  foreign  probate  was 
granted,  that  in  the  execution,  attestation,  and  proof  of  the  will 
the  requirements  of  the  law  of  the  State  in  which  the  land  lies 
have  been  complied  with.  In  some  of  the  States  the  foreign 
probate  seems  to  be  made  conclusive  as  to  real  as  well  as  to 
personal  property;  but  unless  such  be  the  express  or  necessary 
import  of  the  statute,  it  must  affirmatively  appear  from  such 
foreign  probate,  or  other  proof,  that  the  law  of  the  forum  has 
been  observed  in  making  and  proving  the  will  in  order  to  give 
validity  to  its  disposition  of  real  estate.  There  are  some  States, 
also,  in  which  the  probate  of  the  foreign  jurisdiction,  duly 
authenticated,  either  according  to  the  act  of  Congress,  or  in 
accordance  with  the  regulations  prescribed  in  the  statutes  of 
such  States,  are  allowed  to  be  given  in  evidence  without  probate 
anew,  or  previous  approval  by  the  probate  court  of  the  loci  rei 
sitoe. 

In  several  of  the  States  the  statutes  seem  to  provide  only  for 
the  recording  of  a  foreign  will. 

A  will  is  admissible  to  original  probate  in  the  jurisdiction 
of  the  testator's  domicile  at  the  time  of  his  death,  without  re- 
gard to  where  he  died  or  where  the  will  was  made.  And  it 
is  held  in  some  jurisdictions  that  while  the  courts  of  the  ancil- 
lary State  have  jurisdiction,  in  the  sense  of  power,  to  probate 
a  will  there  before  it  is  admitted  to  probate  in  the  testator's 
foreign  domicile,  and  if  there  is  special  occasion  will  do  so, 
yet  as  a  rule  the  probate  court  of  an  ancillary  State  should, 
as  a  matter  of  comity,  refuse  to  entertain  a  petition  for  pro- 
bate of  a  will  before  it  has  been  proved  in  the  State  of  the 
domicile,  where  it  should  be  primarily  established.  And  in 
most  States  it  has  been  held  that  the  proof  must  be  in  accord- 
ance with  the  law  of  the   domicile  at  the  time  of  death, 


§  210]  OF  THE   PROBATE   OF  THE  Vv'ILL.  183 

although  the  statute  provides  that  property  may  be  be- 
queathed if  the  will  be  executed  and  proved  "according  to 
the  laws  of  this  State,  or  of  the  country,  State,  or  Territory  in 
which  the  will  shall  be  made." 

The  provision  of  the  Constitution  of  the  United  States  re- 
quiring full  faith  and  credit  to  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other 
State,  and  the  act  of  Congress  relating  thereto,  do  not  give  such 
acts,  records,  or  proceedings  any  greater  force  and  efficacy  in 
the  courts  of  other  States  than  they  possess  in  the  States  from 
which  they  are  taken,  and  apply  only  so  far  as  such  courts 
have  jurisdiction.  Hence  while  the  judgment  of  a  court  ad- 
mitting a  wall  to  probate  is  binding  on  the  courts  of  every  State 
in  respect  of  all  property  under  its  jurisdiction,  whether  real  or 
personal,  yet  it  establishes  nothing  beyond  that,  and  does  not 
take  the  place  of  the  necessary  formalities  to  make  the  will 
valid  in  respect  of  real  property  in  other  States,  if  wanting.^ 

§  210.  Revocation  of  Probate.  —  The  power  to  revoke  probate 
of  a  will  is  exercised  by  English  courts  of  chancery  in  cases 
where  it  is  clear  that  probate  courts  are  powerless  to  afford 
adequate  relief  against  injury  in  consequence  of  fraud  or  per- 
jury committed  in  obtaining  the  probate.  But  in  the  United 
States  there  is  no  such  power  in  chancery,  except  as  pointed 
out  by  statute  in  some  of  the  States.  "  Wherever  the  power  to 
probate  a  will  is  given  to  a  probate  or  surrogate's  court,  the 
decree  of  such  court  is  final  and  conclusive,  and  not  subject, 
except  on  an  appeal  to  a  higher  court,  to  be  questioned  in  any 
other  court,  or  to  be  set  aside  or  vacated  by  the  court  of  chan- 
cery on  any  ground."  ^  This  language  is  quoted  and  approved 
by  Justice  Bradley  of  the  Supreme  Court  of  the  United  States.^ 
Judge  Story,  the  stanch  vindicator  of  the  most  comprehensive 
chancery  powers,  says  that  there  is  but  one  exception  to  the 
concurrent  jurisdiction  of  chancery  courts  in  all  matters  of 
fraud,  which  is  fraud  in  obtaining  probate  of  a  v/ill;  and  he 
finds  it  "not  easy  to  discern  the  grounds  upon  which  this  ex- 
ception stands  in  point  of  reason  or  principle,  although  it  is 

^  For  details  and  authorities  see  Woemer  on  Administration,  §  226. 
^  State  V.  McGlynn,  20  Cal.  233,  268. 
»  In  Broderick's  Will,  21  Wall.  503. 


184  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  211 

clearly  settled  by  authority."  ^  The  common-law  rule  Is  stated 
to  be  that  the  remedy  for  fraud  in  obtaining  a  will  is  exclusively 
vested,  in  wills  of  personalty,  in  the  ecclesiastical  courts;  and 
in  wills  of  real  estate,  in  the  courts  of  common  law. 

The  power  to  revoke  exists,  however,  in  the  probate  court  it- 
self, in  all  cases  where  the  court  acted  without  jurisdiction, 
without  notice,  where  the  statute  requires  notice,  or  in  disre- 
gard of  some  statutory  requirement,  so  that  the  decree  or  judg- 
ment rendered  is  void;  and  so  where  a  later  will  is  discovered 
subsequently  to  the  probate  of  an  earlier  one,  there  is  no  doubt 
of  the  power  of  the  probate  court  to  establish  the  later  will. 
But  where  a  will  has  been  conclusively  established,  the  produc- 
tion of  a  later  will  for  probate,  not  in  terms  revoking  the  former, 
does  not  raise  the  question  of  revocation,  and  such  revocation 
cannot  be  determined  in  such  proceeding  if  there  is  room  for 
dispute  as  to  construction.  The  probate  of  the  former  will 
should  be  left  to  stand  for  what  it  is  worth,  and  its  effect 
decided  elsewhere.  It  has  been  held  that  no  lapse  of  time  will 
bar  an  application  for  the  revocation  of  the  invalid  probate  of 
a  will,  in  the  court  which  granted  it;  but  unless  the  power  to 
review  or  revoke  is  conferred  by  statute,  no  merely  erroneous 
probate  can  be  set  aside  by  the  probate  court  after  the  term 
at  which  it  was  granted  has  expired. 

The  contest  of  probate  has  been  heretofore  discussed  in 
§200. 

§  211.  EfiEect  of  Probate.  —  It  has  already  appeared  that  at 
common  law,  without  the  constat  of  the  probate  court,  no  other 
court  can  take  notice  of  the  rights  of  representation  to  personal 
property,  and  that  wills  devising  real  estate  must  be  proved  in 
the  common-law  courts.  By  the  statute  of  20  &  21  Vict.  c.  77, 
§  13,  all  wills,  whether  of  real  or  personal  property,  are  required 
to  be  proved  in  the  court  of  probates.  Similar  statutes  had  long 
before  existed  in  most  of  the  American  States,  and  the  constat 
of  the  probate  court  is  necessary  to  the  validity  of  wills  of  per- 
sonalty in  all,  and  of  wills  of  realty  in  nearly  all  of  them. 

In  a  few  States  the  probate  of  the  probate  court  is  neither 
essential  nor  conclusive  as  to  the  validity  of  wills  in  proving 
title  to  real  estate;  such  will  may  be  contested,  if  it  has  been 
.  1  Story's  Eq.  Jur.,  §  440. 


§  211]  OF  THE   PROBATE   OF  THE   WILL.  185 

admitted  to  probate  in  the  probate  court,  or  proved  originally 
if  not,  in  all  common-law  courts  in  which  the  title  to  land  thereby 
affected  is  in  issue.  With  these  exceptions,  however,  neither 
courts  of  law  nor  of  equity  will  take  cognizance  of  testamentary 
papers,  or  of  the  rights  depending  upon  them,  until  after  pro- 
bate in  the  probate  court.  That  such  probate  is  conclusive, 
unless  appealed  from,  set  aside,  or  annulled,  in  the  method 
pointed  out  by  the  statute,  has  already  been  stated.  It  may 
be  mentioned,  in  connection  with  this  subject,  that  the  efflux 
of  time,  in  some  instances,  operates  to  confirm  a  probate  other- 
wise assailable  for  informality,  or  renders  the  probate  conclusive 
after  a  certain  period. 

It  has  already  been  remarked  that  it  is  the  function  of  a  court 
of  probate  to  determine  whether  the  instrument  propounded 
has  been  executed  by  the  testator  and  attested  by  the  subscrib- 
ing witnesses  in  accordance  with  the  statutory  requirements, 
and  whether  he  possessed  sufficient  testamentary  capacity  to 
make  a  valid  will.  It  is  no  part  of  the  proceeding  on  probate 
to  construe  or  interpret  the  will  or  any  of  its  provisions,  or  to 
distinguish  between  valid  and  void,  rational  and  impossible, 
dispositions;  if  the  will  be  properly  executed  and  proved,  it 
must  be  admitted  to  probate,  although  it  contain  not  a  single 
provision  capable  of  execution,  or  valid  under  the  law.  Hence 
the  probate  does  not  establish  the  validity  of  any  of  its  pro- 
visions :  this  is  to  be  determined  by  the  courts  of  construction, 
when  any  question  arises  requiring  their  interposition. 


186         THE  LA'W   OF  DECEDENTS'  ESTATES.        [§  212 


CHAPTER  XXV. 

OF  THE   GRANT   OF   LETTERS   TEST.UIENTARY. 

§  212.  How  the  Executor  is  Constituted.  —  Upon  probate  of 
the  will,  letters  testamentary  may  be  granted  to  sueli  of  the  ex- 
ecutors named  by  the  testator  as  are  willing  to  assume  the  trust. 
The  court  has  no  discretion  in  this  respect,  but  must  grant  the 
letters  to  the  person  or  persons  nominated,  unless  such  person 
is  disqualified  by  law.  One  named  as  executor  is  entitled  to 
letters  testamentary,  although  the  will  contain  no  other  pro- 
vision of  any  kind,  and  an  executor  has  power  generally  to 
administer  all  the  personal  property  of  the  deceased,  although 
the  testator  die  intestate  as  to  a  portion  thereof.  There  need 
be  no  appointment  by  the  testator  in  direct  terms;  it  is  sufficient 
if  a  person  is  designated  to  discharge  those  duties  wdiich  apper- 
tain to  the  office  of  executor,  or  that  any  language  is  used  from 
which  the  intention  of  the  testator  may  be  inferred  to  invest 
such  person  with  the  character  of  executor. 

The  test  of  a  constructive  appointment  as  executor,  or  of  an 
executor  according  to  the  tenor  of  the  will,  may  be  found  by 
considering  whether  the  acts  to  be  done  or  the  powers  to  be  ex- 
ercised by  the  person  are  such  as  pertain  to  the  office  of  an 
executor.  Thus,  the  testator's  declaration  "that  A.  B.  shall 
have  his  goods  after  his  death  to  pay  his  debts,  and  otherwise 
to  dispose  at  his  pleasure,"  and  the  like  expressions,  may  suffice 
for  this  purpose.  The  appointment  to  a  trust  under  the  will, 
not  essential  to  the  office  of  an  executor,  does  not  constitute  the 
trustee  an  executor  according  to  the  tenor,  for  the  offices  of  an 
executor  and  of  a  trustee  are  distinct,  and  may  be  vested  in 
different  persons,  and  when  they  are  vested  in  the  same  person, 
the  functions  of  each  are  nevertheless  to  be  performed  by  him 
in  the  respective  capacity,  the  probate  court  having  Jurisdiction 
over  him  in  the  one,  but  not  in  the  other  capacity.  But  where 
the  testator  uses  the  word  "trustee,"  and  imposes  duties  in- 


§§  213-215]     OF  THE   GRANT   OF   LETTERS   TEST.UIEXTARY.       187 

volving  the  functions  of  an  executor,  this  will  be  held  a  good 
appointment  as  executor. 

As  a  testator  may  nominate  several  executors  to  execute 
his  will  jointly,  so  he  may  direct  a  substitution  of  several,  one 
after  the  other,  so  that,  if  the  first  will  not  act,  the  next  may, 
and  so  on.  Indeed  he  may  delegate  the  appointment  of  an 
executor  to  some  third  person,  and  letters  testamentary  will 
be  granted  to  the  person  by  him  named.  The  executors  may 
be  given  power  to  fill  vacancies  in  their  number.  The  testator 
may  provide  that  upon  the  death  of  his  executor  another  shall 
complete  the  administration.  In  these  cases  the  successor  upon 
his  appointment  possesses  all  the  powers  of,  and  is,  an  executor, 
and  not  an  administrator  de  bonis  non} 

§  213.  Residence  as  Qualification  of  Executor.  —  At  common 
law  non-residence  of  the  testator's  appointee  does  not  disqualify 
him  as  executor.  The  same  rule  prevails  in  many  American 
States.  But  in  many  States  non-residents  of  the  State  are  not 
permitted  to  act  as  executors,  and  in  some  others  there  are 
varying  restrictions  as  to  non-resident  executors,  to  be  found 
in  the  respective  statutes.^ 

§  214.  Infancy  as  disqualifsdng  Executor.  —  At  common  law 
and  in  many  of  the  American  States  infancy  does  not  operate 
as  a  disqualification  to  the  eventual  right  of  executorship; 
but  the  authority  to  qualify  or  act  as  such  remains  in  abeyance 
until  the  infant  reach  the  age  of  majority,  or  such  age  as  may  be 
fixed  by  law  or  statute  as  necessary  to  qualify.  Previous  to 
the  Statute  of  38  Geo.  III.  c.  87,  §  6,  this  age  was  fixed  in  Eng- 
land at  the  age  of  seventeen  years,  and  this  is  the  law  in  several 
of  the  States;  in  others  the  age  of  eighteen  years  is  fixed;  in 
many  it  is  twenty-one  years,  and  in  most  of  the  others  the  age 
of  legal  majority. 

§  215.  Coverture  as  disqualifying  Executrix.  —  According  to 
the  canon  law,  a  married  woman  may  sue  and  be  sued  alone, 
without  her  husband,  and  it  was  held  in  the  spiritual  com-ts  of 
England  that,  in  the  absence  of  a  WTit  of  prohibition,  she  may 
take  upon  herself  the  executorship  of  a  will  without,  or  even 
against,  the  husband's  consent  or  will.    At  common  law,  how- 

*  Kinney  v.  Keplinger,  172  111.  449. 

*  For  details,  see  Woemer  on  Administration,  §  230. 


1S8  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  216 

ever,  the  consent  of  the  husband  is  necessary  to  enable  the  wife 
to  assume  the  office  of  executrix;  but  he  cannot  compel  her  to 
assume  tlic  office  against  her  will,  although  she  will  be  bound, 
if  the  husband  administers  as  in  the  wife's  right,  though  against 
her  consent,  in  so  far  that  she  cannot  during  his  lifetime  avoid 
or  decline  the  executorship. 

In  many  of  the  American  States  married  women  are  not  com- 
petent to  act  as  executrices,  and  if  a /erne  sole  executrix  marries, 
her  authority  is  thereby  extinguished;  while  in  others  she  can 
do  so  only  with  the  consent  of  her  husband.  In  some  a  married 
woman  may  become  executrix  independently  of  her  husband. 
The  common-law  doctrine,  that  the  husband  becomes  executor 
in  right  of  his  wife  upon  marrying  a  feme  sole  executrix,  is 
recognized  in  a  few  States,  but  does  not  prevail  generally. 

§  216.  Mental  Incapacity,  Immorality,  and  other  Disqualifi- 
cations for  Executorship.  —  In  most  of  the  States  there  are 
statutory  provisions  disqualifying  persons  named  as  executors, 
on  account  of  mental  incapacity  and  immorality.  Insane  per- 
sons, persons  convicted  of  infamous  crime,  and  such  as  are 
incompetent  on  account  of  drunkenness,  improvidence,  or 
want  of  understanding  or  integrity,  cannot  be  admitted  as 
executors. 

American  courts  give  a  liberal  interpretation  to  statutes 
authorizing  the  rejection  of  unsuitable  executors. 

Idiots  and  lunatics  are  deemed  incapable  of  becoming  execu- 
tors, both  at  the  common  and  the  civiliaw.  Poverty,  or  even 
insolvency,  constitutes  no  legal  disqualification. 

It  is  said  to  be  settled  law  in  England  that  where  a  corpora- 
tion aggregate  is  nominated  as  executor,  it  may  appoint  persons 
styled  syndics  to  receive  administration  with  the  will  annexed, 
who  are  sworn  like  other  administrators,  because  they  cannot 
prove  the  will,  or  at  least  cannot  take  the  oath  for  the  due  exe- 
cution of  the  office.  In  the  United  States  the  prevalence  of 
authority,  once  against  the  competency  of  corporations  ag- 
gregate to  act  as  executors,  seems  now  to  turn  the  other  way. 

Corporations  or  trust  companies  may  now  be  found  in  mo.st 
States,  permitted  by  statute  to  exercise  the  functions  of  exec- 
utors and  administrators  in  connection  with  trust  funds.  It 
has  also  been  held  that  a  firm  may  be  nominated  as  executors, 


§  217]         OF  THE   GR.^T   OF   LETTERS   TESTAMENTARY.  1S9 

and  that  in  such  case  letters  testamentary  will  be  granted  to 
the  individual  members  of  the  firm.  And  so  of  a  corporation 
sole;  the  individual  composing  it  may  be  admitted  as  executor. 

§  217.  Acceptance  or  Refusal  of  Executorship.  —  At  common 
law,  and  in  those  of  the  States  in  which  the  authority  of  the 
executor  is  recognized  as  emanating  from  the  will  without  a 
formal  grant  of  letters  testamentary,  the  question  whether  a 
person  named  in  the  will  as  executor  has  or  has  not  accepted 
the  office  is  sometimes  difficult  of  solution.  He  cannot,  of 
course,  be  compelled  to  accept  the  executorship,  since  it  is  a 
private  ofiice  of  trust  named  by  the  testator,  and  not  by  the 
law;  he  may  refuse,  even  if  in  the  lifetime  of  the  testator  he 
has  agreed  to  accept  the  office.  The  right  to  refuse  may  be  lost 
by  the  executor,  if  he  do  any  act  which  amounts  to  administra- 
tion; for  if  he  once  administer,  it  is  considered  that  he  has 
already  accepted  the  executorship,  and  the  court  may  compel 
him  to  prove  the  will;  but  if  the  court  accept  his  refusal,  not- 
withstanding he  may  have  acted,  the  grant  of  administration 
to  another  will  be  valid. 

In  the  United  States  this  subject  is,  on  the  one  hand,  of  far 
smaller  unportance  than  at  the  common  law,  because  in  most  of 
the  States  an  executor  has  no  authority  to  bind  the  estate  of 
his  testator  without  a  formal  grant  of  letters  testamentary; 
and  is,  on  the  other  hand,  more  readily  determined,  since  it 
is  mostly  regulated  by  statutes.  But  since  administration 
with  the  will  annexed  can  only  be  granted  in  default  of  an  ex- 
ecutor named  in  the  will,  it  is  necessary  that  the  court,  before 
granting  such  administration,  shall  be  informed  that  the  exec- 
utor, or  all  of  several  executors  named,  have  renounced  the 
trust,  or  are  incompetent  to  serve.  No  formality  is  necessary 
in  making  such  proof  beyond  compliance  with  the  require- 
ments of  the  statute;  it  is  sufficient  if  the  intention  to  renounce 
is  clearly  expressed  in  writing,  and  filed  in  the  court  at  any 
time  before  he  undertakes  the  office  or  intermeddles  with  the 
estate,  even  after  propounding  the  will  for  probate,  or  being 
sworn  as  executor.  A  renunciation  may  be  inferred  from  the 
conduct  of  the  executor  after  being  informed  of  his  nomination, 
without  formal  communication  from  him.  For  the  purpose  of 
granting  letters,  either  testamentary  or  of  administration,  the 


190  THE   L.\W   OF  DECEDENTS'   ESTATES.  [§  217 

probate  court  may,  at  the  instance  of  a  person  interested,  or 
perhaps  upon  its  own  motion,  summon  the  executor  before 
it  to  prove  the  will ;  and  as  the  executor  cannot  avoid  a  will  by 
refusing  to  accept  the  trust,  he  may  thus  be  compelled  either 
to  accept  or  renounce  it,  so  that  administration  with  the  will 
annexed  may  be  granted.  But  the  executor  should  be  cited 
to  show  cause  why  he  should  not  accept  or  decline  the  trust 
before  letters  with  the  will  annexed  are  granted.  The  time 
when  it  becomes  imperative  for  the  executor  named  to  accept 
or  renounce  is  when  he  is  cited  to  do  so ;  mere  inaction  and  delay 
unaccompanied  by  act  of  intermeddling  with  the  estate  cannot 
amount  to  an  acceptance  against  his  consent.  It  seems  ob- 
vious that  the  death  of  one  nominated  as  executor  in  a  will 
before  the  grant  of  letters,  and  a  fortiori  before  the  probate  of 
the  will,  amounts  to  a  renunciation. 

An  executor  nominated  in  the  will,  who  has  renounced,  may 
retract  his  renunciation,  and  assume  the  office  at  any  time 
before  the  grant  of  letters  testamentary  to  other  executors,  or 
of  letters  of  administration  with  the  will  annexed.  So  if  an 
acting  executor  has  been  removed  for  cause,  or  died,  the  renun- 
ciation of  one  named  as  co-executor  may  be  retracted,  and  letters 
granted  as  if  it  had  not  been  made ;  and,  in  the  absence  of  stat- 
utory regulation  to  the  contrary,  one  of  several  executors  named 
in  a  will,  not  taking  letters  testamentary  when  his  co-executors 
do,  may  come  in  at  any  time  afterward  and  do  so. 


§  2  IS]  LETTERS   OF  ADMINISTRATION.  191 


CHAPTER  XXVI. 

LETTERS   OF  ADMINISTRATION. 

§  218.  Principles  governing  the  Grant  of  Letters  of  Admin- 
istration. —  Administration  is  granted  upon  the  estates  of  per- 
sons dying  intestate,  and  cum  testamento  annexo  upon  the  estates 
of  those  who  left  a  will,  but  no  executor  competent  or  willing 
to  assume  the  office.  Before  letters  of  administration  can 
properly  be  granted,  there  must  be  proof  to  the  satisfaction 
of  the  probate  court  that  the  decedent  died  intestate  while 
domiciled  within  the  territorial  jurisdiction  of  such  court, 
leaving  property;  or  that  he  died  elsewhere,  leaving  property 
within  such  jurisdiction.  If  he  left  a  will,  it  must  also  be  shown 
that  there  is  no  executor  competent  or  willing  to  execute  it. 

Aside  from  the  statutory  regulations,  which  in  every  State 
determine  what  persons  are  entitled  to  the  administration, 
and  which  of  course  must  be  observed  in  appointing  an  admin- 
istrator to  office,  the  discretion  vested  in  probate  courts  in 
this  respect  is  to  be  governed  by  well-known  general  principles. 
The  most  important  of  these  is,  that  administration  should  be 
committed  to  those  who  are  the  ultimate  or  residuary  bene- 
ficiaries of  the  estate,  —  those  to  whom  the  property  will  go 
after  administration.  To  secure  to  them  the  right  to  administer 
is  the  paramount  object  of  the  statutes  fixing  the  order  of  pref- 
erence, and  constitutes  the  aim  and  intention  of  courts  in  the 
exercise  of  such  discretion  as  is  vested  in  them.  It  is  obvious 
that  those  who  will  reap  the  benefit  of  a  wise,  speedy,  and  eco- 
nomical administration,  or,  on  the  other  hand,  suffer  the  con- 
sequences of  waste,  improvidence,  or  mismanagement,  have 
the  highest  interest  and  most  influential  motive  to  administer 
properly.  Hence  it  is  said  that  the  right  to  administer  follows 
the  right  to  the  personal  property,  —  a  rule  the  binding  force 
of  which  is  recognized  in  America,  as  well  as  in  England.  The 
correlative  of  the  rule  is  equally  true,  —  that  administration 


192  THE  LAW   OF  DECEDENTS'  ESTATES.  [§  219 

should  not  be  granted  to  one  whose  interests  are  adverse  to  the 
estate. 

The  prominence  of  the  right  of  the  surviving  to  administer 
the  estate  of  a  deceased  spouse  is  strongly  corroborative  of  the 
vahdity  of  this  rule.  In  England  the  right  belongs  to  the  hus- 
band exclusively  of  all  other  persons,  and  the  court  of  probate 
has  no  power  or  election  to  grant  it  to  any  other.  This  right 
is  said  not  to  be  an  ecclesiastical,  but  a  civil  right  of  the  hus- 
band, though  administered  in  the  court  of  probate. 

In  the  United  States  the  right  of  the  surviving  husband  or 
wife  to  administer  on  the  deceased  spouse's  estate  is  generally, 
but  not  universally,  accorded  by  statute;  and  whether  the  reason 
be  found  in  the  husband's  marital  right  to  the  wife's  personalty, 
extending  in  some  States  to  her  choses  in  action,  or  in  any  of 
the  other  causes  suggested,  it  is  undeniable  that  they  have,  be- 
sides their  personal  interest  in  the  estate,  the  control  of  the 
interests  of  the  minor  heirs,  where  there  are  such,  being  the 
natural  guardians  of  their  persons  and  estates,  and  thus  unite 
in  themselves,  as  the  surviving  centre  and  head  of  the  family, 
a  greater  interest  in  the  estate  than  any  other  single  person  — 
in  all  cases,  at  least,  where  the  deceased  leaves  minor  children. 
The  exceptions  to  the  right  of  husband  or  wife  to  administer 
still  further  corroborate  the  principle  upon  which  the  rule  is 
founded.  It  is  held,  in  several  States,  that  where  by  ante- 
nuptial agreement  or  by  articles  of  separation  the  property 
of  the  husband  or  wife  does  not  pass  to  the  survivor,  he  or  she 
is  not  entitled  to  the  administration;  ^  but  if  it  gave  the  wife  a 
power  of  disposal  of  her  separate  property  which  she  has  not 
executed,  or  where  a  devise  to  a  trustee  for  the  wife's  use  ends 
with  her  death,  the  husband's  right  to  administer  is  not  af- 
f ected.2  For  the  same  reason  the  widow  is  not  entitled  to  letters 
cum  testamento  annexo  if  she  takes  no  part  of  the  personal  es- 
tate under  the  will.^ 

§  219.    Husband's  Right  to  Appointment.  —  It   appears  from 

1  In  re  Davis,  106  Cal.  543,  547.  But  in  Illinois  the  statute  has  been 
held  mandatory:  O'Rear  v.  Crum,  135  111.  294.  In  Missouri  it  is  held 
that  the  husband  can  waive  his  right  to  administer  by  ante-nuptial  con- 
tract: Estate  of  Evans,  117  Mo.  App.  629. 

2  Hart  V.  Soward,  12  B.  Monr.  391. 

2  Estate  of  Crites,  155  Cal.  392,  101  Pac.  316. 


§  220]  LETTERS   OF  ADMIXISTRATION.  193 

the  preceding  section  that  in  England  the  husband's  right  to 
administer  on  the  estate  of  his  deceased  wife  is  absolute,  being 
expressly  confirmed  by  statute.  The  statutes  of  many  of  the 
American  States  embody  the  same  or  similar  provisions;  but 
in  others  the  principle  that  administration  should  follow  the 
right  to  the  personal  property  prevails  over  the  husband's 
absolute  right.  Thus,  the  husband  is  not  entitled  to  administer 
the  wife's  estate  to  the  exclusion  of  her  children,  if  they  in- 
herit; nor  if  he  is  excluded  from  any  share  in  her  estate;  but 
unless  the  statute  expressly  or  by  necessary  implication  deprive 
him  of  this  right,  it  cannot  be  denied  him. 

That  a  marriage  was  voidable  does  not  militate  against  the 
husband's  right  to  administer  the  wife's  personal  estate,  unless 
sentence  of  nullity  was  pronounced  before  her  death;  but  a 
marriage  absolutely  void  ab  initio  confers  no  rights  upon 
the  husband.  So,  also,  notwithstanding  a  divorce  a  mensa 
et  tkoro,  or  his  abandonment  of  the  wife,  he  is  entitled  to 
administer. 

§  220.  Widow's  Right  to  Appointment.  —  Under  the  English 
statute,  the  ordinary  is  directed  to  grant  administration  "to 
the  widow  or  the  next  of  kin,  or  to  both,"  at  his  discretion; 
and  although,  by  the  seventy-third  section  of  the  Court  of 
Probate  Act,  the  power  of  the  probate  court  in  making  grants 
of  administration,  and  deciding  to  whom  they  shall  be  granted, 
has  been  much  enlarged,  yet  even  under  it  the  court  is  precluded 
from  making  a  joint  grant  to  a  widow  and  one  of  the  persons 
entitled  to  distribution  (but  not  next  of  kin).  If  a  joint  grant 
is  to  be  made  to  the  widow  and  one  of  the  next  of  kin,  all  the 
other  next  of  kin  must  consent  thereto;  and  the  modern  Eng- 
lish practice  is  to  favor  the  widow  under  ordinary  circumstances. 

In  the  United  States  the  widow  is  usually  preferred  to  all 
others  as  administratrix  of  her  deceased  husband,  but  her 
claim  is  neither  so  generally  recognized,  nor  based  upon  the 
same  ground,  as  that  of  the  husband  to  the  estate  of  a  deceased 
wife,  but  has  its  basis  in  the  division  of  interests  between  her 
and  the  kindred. 

As  the  husband's  right  to  administer  on  the  deceased  wife's 
estate  depends  upon  a  valid  marriage,  so  the  widow,  to  entitle 
her  to  administer  her  husband's  estate,  must  be  the  surviving 


194  THE   L.\W   OF  DECEDENTS'  ESTATES.         [§§  221,  222 

wife  of  an  actual  marriage.  Hence  one  who  cohabited  with  a 
man  who  had  a  wife  Hving  from  whom  he  was  not  divorced, 
although  unknoAATi  to  her,  and  although  she  fully  believed 
herself  to  be  his  lawful  wife,  is  not  entitled  to  administer;  nor 
one  divorced  a  vinculo.  A  divorce  a  mensa  et  thoro  does  not, 
as  appears  from  the  preceding  section,  deprive  the  husband  of 
the  right  to  administer,  nor  destroy  the  relation  of  marriage, 
but  merely  suspends  some  of  the  obligations  arising  out  of  that 
relation;  and  the  right  of  succession  is  not  impaired.  It  seems, 
therefore,  that  in  such  case,  and  where  the  marriage  was  void- 
able, but  not  dissolved  during  the  husband's  lifetime,  the  wid- 
ow's right  to  administer  is  not  affected. 

Where  discretion  is  vested  in  the  court  granting  letters  of 
administration,  it  is  generally  exercised  in  favor  of  the  ^vidow, 
unless  some  good  reason  be  shown  demanding  a  different  course. 
If  the  one  of  those  entitled  be  competent,  and  the  other  not, 
the  appointment  will  of  course  be  confined  to  the  one  compe- 
tent; but  if  neither  the  w^idow  nor  next  of  kin  be  under  legal 
disability,  their  personal  suitableness  is  to  be  considered. 

§  221.  Right  of  Next  of  Kin  to  Appointment.  —  In  an  ear- 
lier chapter  of  this  treatise  the  principle  is  indicated  according 
to  which  the  property  of  the  intestate  descends  or  is  distribu- 
table as  far  as  the  course  of  descent  is  not  fixed  by  the  statute 
eo  nomine.  Under  the  fundamental  principle  that  the  right 
of  administration  follows  the  right  of  property,  the  rules  there 
pointed  out  determine  who  is  next  of  kin  for  piu-poses  of  admin- 
istration. In  States  where  the  husband  is  entitled  to  his  wife's 
property,  if  the  next  of  kin  be  a  married  woman  and  she  re- 
nounces, the  grant  is  made  to  the  husband;  for  he  has  an  inter- 
est, and  the  grant  must  follow  the  interest,  and  the  wife  cannot 
by  renouncing  deprive  her  husband  of  his  right  to  the  grant. 
The  preference  given  by  statute  to  the  next  of  kin  is  obligatory 
upon  the  court,  and  it  is  error  to  appoint  a  stranger  where  a 
son,  who  is  eligible  and  qualified,  asks  to  be  appointed. 

§  222.  Right  of  Creditors  to  Appointment.  —  It  follows  from 
the  principle,  repeatedly  stated  above,  of  committing  adminis- 
tration to  those  who  have  the  ultimate  interest  in  the  estate, 
that  creditors  or  their  nominees  are  preferred  when  the  assets 
of  an  estate  are  not  more  than  sufficient  to  pay  the  debts,  and 


§§  223,  224]  LETTERS  OF  ADMINISTRATION.  195 

funeral  and  administration  expenses.  They  are  accordingly 
preferred  to  the  next  of  kin  in  some  States,  in  others  their  right 
is  subordinate  to  that  of  the  next  of  kin,  but  superior  to  that  of 
other  persons,  and  the  right  of  a  creditor  is  generally  recognized 
where  neither  husband  nor  wife,  nor  any  of  the  next  of  kin, 
will  qualify. 

If  those  who  are  preferred  by  statute  are  willing  to  qualify, 
it  is  error  to  appoint  a  creditor. 

§  223.  Right  of  Public  Administrator  to  administer.  —  It 
appears  from  the  consideration  of  the  functions  of  public  ad- 
ministrators in  a  previous  chapter,  that  they  are  public  officers 
in  a  sense  different  from  that  in  which  executors  or  adminis- 
trators are  also  considered  public  officers,  in  this,  that  they  are 
elected  or  appointed  directly  by  the  people,  or  the  political 
appointing  power,  and  assume  the  administration  of  estates 
ex  officio,  or,  when  they  receive  their  authority  over  a  particular 
estate  from  the  probate  court,  the  grant  to  them  is  virtute 
officii.  In  two  of  the  States  ^  the  public  administrator  takes 
charge  of  estates,  under  circumstances  pointed  out  by  the 
statute,  without  judicial  order,  thus  conferring  upon  him 
quasi  judicial  authority,  subject,  however,  to  the  control  of 
the  probate  court;  while  in  other  States  his  authority  in  each 
particular  estate  is  derived  from  appointment  by  the  probate 
court. 

The  circumstances  under  which  the  public  administrator  is 
entitled  to  appointment,  or  is  preferred  in  the  discretion  of  the 
court,  have  been  discussed  in  connection  with  the  statement  of 
the  functions  of  that  office. 

§  224.  Disqualifications  excluding  from  Appointment  as  Ad- 
ministrator. —  The  persons  entitled  to  the  grant  of  administra- 
tion according  to  the  rules  above  set  forth  may  be  disqualified 
by  statutory  provision,  such  as  infancy,  coverture  of  a  female, 
non-residence,  etc.,  in  which  case  letters  of  administration 
must  be  granted  to  some  other  person.  It  is  safe  to  assume  that 
what  will  disqualify  one  from  acting  as  executor  will  equally 
defeat  the  right  to  administer;  but  not  all  persons  competent 
as  executors  are  likewise  competent  as  administrators.  Thus, 
insolvency  has  been  held  to  disqualify  one  for  the  office  of  ad- 
1  New  York  and  Missouri. 


196  THE  LAW   OF  DECEDENTS'  ESTATES.  [§  224 

ministrator,  on  the  ground  that  the  beneficiaries  of  the  estate 
are  entitled  to  the  security  of  an  administrator's  personal  lia- 
bihty,  as  well  as  that  of  his  bail;  illiteracy,  because  one  who  can 
neither  read  nor  write  would  be  forced  to  trust  to  agents,  and 
would  be  at  the  mercy  of  designing  persons,  thereby  exposing 
the  interests  of  the  estate  to  danger  of  loss  from  mismanage- 
ment and  corruption;  and  so  subjection  to  undue  influence 
of  one  charged  with  fraudulent  designs  against  the  estate. 
Neither  poverty  nor  illiteracy,  however,  is  ordinarily  deemed 
to  deprive  one,  otherwise  preferred,  of  the  right  to  administer 
an  estate.  Another  disqualification  in  administrators,  though 
not  in  executors,  or  in  a  less  degree,  is  that  of  adverse  or  in- 
consistent interest.  Where,  for  instance,  one  person  represents 
two  estates  between  which  litigation  ensues:  in  such  case,  he 
would  necessarily  be  both  plaintiff  and  defendant,  to  the  mani- 
fest detriment  of  justice,  and  the  jeopardy  of  the  interests  of 
one  or  both  the  estates.  And  so  it  would  be  highly  improper  to 
appoint  one,  whether  next  of  kin  or  not,  who  claims  in  his  own 
right  assets  of  the  estate,  or  which  were  in  possession  of  the 
intestate  at  the  time  of  his  death,  or  whose  interests  are  in 
antagonism  to  the  estate.  Such  considerations  are  not  per- 
mitted to  interfere  with  the  right  of  the  executor. 

What  has  heretofore  been  said  concerning  the  statutory  dis- 
qualifications of  executors,  applies  with  equal  force  to  admin- 
istrators. In  most  of  the  States  an  infant  can  neither  act  as, 
nor  nominate,  an  administrator;  married  women  arc  in  many 
of  the  States  disqualified,  and  likewise  non-residents.  Under 
statutes  excluding  persons  convicted  of  infamous  crime  from 
the  right  to  be  appointed,  no  degree  of  legal  or  moral  guilt  is 
sufficient  to  disqualify,  short  of  conviction  after  indictment  or 
other  criminal  proceeding  within  the  State.  Intermeddling 
with  the  goods  of  an  estate,  so  as  to  render  one  liable  as  an 
executor  de  son  tort,  does  not  per  sc  destroy  the  right  to  admin- 
istration. "Want  of  understanding"  must  amount  to  a  lack 
of  intelligence,  and  cannot  be  presumed  from  a  lack  of  infor- 
mation or  misinformation  of  the  law;  and  "improvidence,"  as 
a  ground  of  exclusion,  is  such  a  want  of  care  and  forethought 
as  would  be  likely  to  render  the  estate  and  effects  liable  to  be 
lost  or  diminished  in  value;  it  refers  to  such  habits  of  the  mind 


§  225]  LETTERS  OF  ADMINISTRATION.  197 

and  body  as  render  a  man  generally  and  under  all  ordinary 
circumstances  unfit  to  serve. 

§  225.  Considerations  governing  Discretion.  —  Between  ap- 
plicants of  the  same  class,  all  of  whom  are  equally  entitled,  it 
is  discretionary  with  the  probate  court  who  shall  be  selected, 
and  no  appeal  lies  from  the  exercise  of  such  discretion  except  in 
case  of  gross  abuse.  But  it  is  obvious  that,  in  the  exercise  of 
the  power  of  appointing  administrators,  the  court  is  limited  to 
the  selection  of  such  persons  as  are  competent  under  the  statute, 
in  the  order  therein  pointed  out.  Thus,  if  the  widow  constitute 
a  class  by  herself,  as  she  does  in  many  States,  she  must  be 
appointed  if  willing  to  serve,  and  not  disqualified  under  the 
statutory  regulations  of  the  subject,  no  matter  what  objections 
exist  to  her  administration,  or  how  plausible  they  be.  There  is, 
in  a  case  where  priority  is  given  by  statute,  no  discretion. 

So  where  the  statute  makes  a  distinction  of  sex  between  those 
otherwise  equally  entitled,  the  indi\'iduals  composing  the  fa- 
vored class  must  be  appointed,  if  they  apply,  no  matter  how 
desirable  the  appointment  of  one  of  the  other  sex  might  be  to 
the  majority  of  those  interested,  unless  the  favored  class  are 
under  some  statutory  disability.  And  where  an  unmarried  is 
preferred  to  a  married  female,  the  court  cannot  reject  the  ap- 
plication of  the  former,  although  it  is  objected  against  her  that 
she  is  a  professed  nun,  and  the  inmate  of  a  convent.  WTiere 
the  widow  and  next  of  kin  are  placed  in  the  same  class  as  to 
the  right  of  appointment,  the  widow,  as  has  already  been  stated, 
is  preferred,  other  things  being  equal;  a  sole  being  like^sise 
preferred  to  a  joint  administration. 

The  rule  which  is  the  foundation  of  the  preference  accorded 
by  the  statutes  —  i.  e.,  to  commit  the  administration  to  those 
who  are  eventually  entitled  to  the  property  —  is  equally  bind- 
ing upon  the  court,  in  the  exercise  of  the  discretion  vested  in 
it  in  choosing  between  several  individuals  placed  by  the  stat- 
ute in  the  same  class  of  preference.  If  this  class  include 
the  widow,  together  with  children  or  other  next  of  kin,  the 
widow  is,  as  we  have  seen  before,  generally  preferred;  but  the 
preference  must  yield  where  she  is  unsuitable,  in  which  case 
one  or  more  of  the  next  of  kin  will  be  entitled.  In  selecting 
from  among  the  next  of  kin,  the  preference  may  be  determined 


198  THE   LAW   OF  DECEDENTS'  ESTATES.  [§  226 

by  the  ratio  in  which  the  parties  are  entitled  to  distribution; 
for  if  one  be  entitled  to  more  than  another,  he  will  have  a 
greater  interest  in  the  proper  administration  of  the  estate. 
And  in  cases  of  conflicting  claims,  the  applicant  upon  whom  a 
majority  of  the  parties  in  interest  agree  will  generally  be  pre- 
ferred, but  not,  of  course,  unless  the  nominee  belong  to  the 
same  class ;  for  the  order  of  preference  enacted  by  statute  cannot 
be  changed  or  ignored  to  the  postponement  of  any  person  in- 
cluded therein.  Other  things  being  precisely  even,  the  scale 
may  be  inclined  by  the  preference  of  an  older  over  a  younger 
person;  or  of  a  male  over  a  female;  of  an  unmarried  over  a  mar- 
ried woman;  and  of  one  accustomed  to  business  over  one  inex- 
perienced. CoEteris  'paribus,  the  fact  that  an  applicant  had  twice 
been  a  bankrupt  militates  against  him,  to  the  preference  of 
one  who  had  not  been  bankrupt;  and  so  does  the  fact  that  one, 
in  addition  to  being  of  the  next  of  kin,  is  also  a  creditor.  Nor 
will  one  be  appointed  who  is  in  such  hostility  to  the  others  as 
will  disqualify  him  from  fairly  considering  their  claims.  The 
antagonism  in  interest,  which  in  some  States  amounts  to  a 
statutory  disqualification,  is  an  important  circumstance  to 
consider  in  passing  upon  the  relative  claims  of  applicants  in 
equal  degree  under  the  statute,  although,  if  such  person  be  the 
only  applicant,  the  court  may  have  no  power  to  reject  him; 
or,  having  once  appointed  him,  though  in  ignorance  of  his  un- 
suitableness  in  this  respect,  no  power  to  remove  him  except  for 
cause  arising  after  his  appointment.^ 

§  226.  Renunciation  of  the  Right  to  Administer.  —  The  pref- 
erence given  by  statute  may  be  waived  or  renounced.  Unless 
it  is,  the  appointment  of  any  other  person  is  irregular,  and  will 
be  vacated  upon  demand  of  a  person  having  the  preference. 
The  renunciation  may  be  spontaneous,  or  upon  citation  by  some 
person  interested ;  and  it  will  be  presumed  —  that  is,  the  ex- 
clusive right  to  administer  will  be  deemed  —  to  have  been 
waived,  if  letters  are  not  applied  for  by  the  party  preferred 
within  the  period  prescribed  for  such  purpose  by  statute.  But 
until  letters  have  been  granted  to  some  one  else,  such  person 
may  still  apply  for  and  demand  letters,  although  the  statutory 

^  The  authorities  for  the  illustrations  given  in  this  section  can  be 
foxuid  in  Woemer  on  Administration,  §  242. 


g  227]  LETTERS  OF  ADMINISTRATION.  199 

period  may  have  expired.  Renunciation  should  be  in  writing 
and  entered  of  record:  a  mere  parol  renunciation  does  not 
amount  to  a  waiver  of  the  right.  And  where  the  renunciation 
is  coupled  with  a  condition,  which  condition  is  not  performed, 
the  parties  renouncing  are  not  thereby  bound,  but  may  insist 
on  their  prior  right.  Citation  to  parties  having  a  prior  right  to 
administer  cannot  ordinarily  be  issued  before  the  expiration  of 
the  period  fixed  by  statute  within  which  they  must  make  appli- 
cation. Under  an  established  rule  of  the  English  ecclesiastical 
courts,  no  letters  will  be  granted  to  any  person  in  derogation  of 
the  right  of  those  having  priority,  unless  such  parties  are  cited, 
or  consent,  even  where  the  party  who  has  the  right  has  no  in- 
terest in  the  property  to  be  administered;  but  this  rule  is  not 
invariably  applied  to  cases  where  the  selection  is  in  the  discre- 
tion of  the  court.  In  America  the  rule  is  the  same.  Before  any 
one  can  be  appointed  administrator,  who  is  not  in  the  pre- 
ferred class,  notice  must  be  given  to  those  having  a  prior  right, 
to  appear  and  claim  their  privilege,  or  show  cause  why  the  ap- 
plicant should  not  be  appointed.  To  dispense  with  the  cita- 
tion, those  having  the  preference  should  renounce  their  claim, 
or  signify  their  consent  to  the  grant  of  the  petitioner's  request 
by  indorsement  upon  the  petition,  or  some  other  writing  of 
record.  But  no  notice  is  necessary  to  the  other  parties  in  the 
same  class  with  the  applicant;  the  appointment  may  be  made 
ex  parte  to  any  of  those  who  are  equally  entitled.  Accordingly, 
letters  granted  to  strangers,  or  to  persons  having  no  preference 
under  the  statute,  without  notice  to  those  being  preferred,  will, 
upon  the  application  of  those  having  the  right,  be  revoked,  in 
order  that  the  grant  may  be  made  in  accordance  with  the  stat- 
ute; but  such  grant  is  no  ground  for  revocation  if  the  party 
applying  therefor  had  notice  of  the  original  grant,  either  con- 
structively in  the  mode  prescribed  by  the  statute,  or  actually 
in  any  method,  or  failed  to  apply  within  the  time  required  by 
the  statute,  or  actually  renounced  the  right;  nor  can  there  be 
such  revocation,  except  for  cause  otherwise,  where  the  court 
has  made  the  appointment  in  the  exercise  of  its  statutory  juris- 
diction in  selecting  one  or  more  from  a  class  equally  entitled. 

§  227.    Effect  of  Renunciation  or  Waiver.  —  If  the  person,  or 
all  of  a  class  of  persons,  entitled  by  preference,  have  waived 


200  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  228 

or  renounced  their  privilege,  it  becomes  the  duty  of  the  court 
to  appoint  the  one,  or  one  or  more  of  a  class,  having  the  next 
right,  if  there  be  such;  the  discretion  to  select  between  several 
equally  entitled  being  governed  by  the  same  considerations  as 
if  no  renunciation  or  waiver  had  occurred,  limited,  however,  to 
the  applicants  before  the  court,  because  the  court  has  no  right 
to  reject  an  applicant  on  the  mere  ground  that  there  may  be 
others  equally  entitled  who  are  better  qualified. 

The  right  given  by  the  statute  cannot  be  delegated ;  the  widow 
or  any  of  those  entitled  by  preference,  may  renounce  their  right, 
but  when  they  do  so,  the  power  to  appoint  under  the  regulations 
of  the  statute,  and  the  duty  to  exercise  the  discretion  thereby 
conferred,  is  still  in  the  probate  court;  hence  the  person  re- 
nouncing cannot  substitute  another  person  and  demand  his 
appointment.  But  while  the  court  is  in  no  wise  bound  by  the 
nomination  of  the  party  having  renounced,  yet  the  wishes  and 
preferences  of  those  whom  the  statute  points  out  as  the  fittest 
persons  to  administer  the  estate  will  have  great  weight  in 
guiding  the  discretion  of  the  court. 

Wliere  the  statute,  as  interpreted,  does  not  prevent,  it  is 
usual  where  the  husband,  widow,  or  next  of  kin  reside  abroad, 
to  grant  the  administration  to  the  nominee  of  such  relative.  So 
a  stranger  may  be  appointed  at  the  request  of  one  who  has  him- 
self the  preference,  if  there  be  no  others  having  preference  over 
the  stranger  so  appointed. 

Agreements  to  transfer  the  right  of  administration  from 
those  entitled  under  the  statute  to  other  parties,  for  a  consid- 
eration, —  for  instance,  of  receiving  from  such  party  the  com- 
missions to  be  allowed  by  the  court,  —  are  against  public  policy 
and  will  not  be  sustained;  an  agreement  between  two  parties, 
both  equally  entitled,  to  take  joint  administration,  and  where 
the  principal  labor  and  responsibility  would  fall  on  one,  that 
the  other  would  take  such  portions  of  the  commissions  as  his 
associate  would  thmk  fair  was  held  valid.  But  there  can  be  no 
partnership  in  the  office  of  administrator. 

§  228.  Administrators  cum  Testamento  Annexo.  —  The  dis- 
tinction between  an  administrator  generally  and  an  adminis- 
trator cum  testamento  annexo  is,  as  the  name  implies,  and  as  has 
already  been  remarked,  that  the  former  distributes  the  effects 


§  229]  LETTERS   OF  ADMINISTRATION.  201 

according  to  the  law  of  descent  and  distribution,  while  the  latter 
is  bound  in  this  respect  by  the  provisions  of  the  will.  Since  ad^ 
ministration  with  the  will  annexed  is  granted  only  in  default  of 
an  executor  named  in  the  will,  it  is  necessary,  before  such  grant 
can  be  made,  that  the  court  be  fully  satisfied  that  the  executor 
named,  if  any,  or  where  several  are  named,  all  of  them,  have 
renounced  the  trust,  or  are  unwilling  to  serve,  or  incapable. 
No  formality  is  necessary  in  making  such  proof,  beyond  the 
compliance  with  the  statutory  requirements  on  this  subject;  but 
it  is  necessary  that  the  record  show  the  renunciation,  or  waiver, 
otherwise  letters  cum  testamento  annexo  may  be  declared  void. 

In  granting  letters  cum  testamento  annexo,  the  court  is  gov- 
erned by  the  same  principles  which  determine  the  appointment 
of  general  administrators,  chief  among  which  is,  that  in  the 
absence  of  regulation,  the  right  to  administer  follows  the  right 
to  the  personal  property.  Hence  residuary  legatees  are  pre- 
ferred, in  the  grant  of  letters  cuvi  testamento  annexo,  to  the 
next  of  kin  or  widow;  and  this  preference  extends  to  the  repre- 
sentatives of  residuary  legatees  who  survive  the  testator  and 
have  a  beneficial  interest,  such  representatives  being  entitled 
to  letters  cum  testamento  annexo  in  preference  to  the  next  of  kin, 
unless  otherwise  determined  by  statute. 

§  229.  Administration  of  Estates  of  Non-Residents.  —  The  ne- 
cessity of  administration  on  the  property  of  a  non-resident  in 
the  sovereignty  where  it  may  be  found,  and  the  relation  of  such 
administration  to  that  of  the  domicile  of  the  deceased  have 
been  heretofore  discussed.  Since  the  law  of  the  domicile  at 
the  time  of  an  intestate's  death  governs  the  devolution  of  per- 
sonal property,  the  selection  of  an  administrator  in  an  ancillary 
jurisdiction  where  property  of  the  deceased  may  be  found,  will 
be  affected  to  some  extent  by  the  law  of  the  domicile.  But  in 
other  respects  there  is  no  essential  difference  in  the  rules  gov- 
erning the  grant  of  letters  on  the  estates  of  deceased  residents 
and  non-residents.  It  has  also  been  pointed  out,  that  by  the 
comity  of  States  the  person  who  obtains  administration  in  the 
State  of  the  domicile,  or  his  attorney,  is  entitled  to  a  similar 
grant  in  any  other  jurisdiction  where  the  deceased  has  personal 
property,  unless  such  person  is  disqualified  by  the  law  of  the 
ancillary  forum. 


202  THE  LAW  OF  DECEDENTS'  ESTATES,         [§§  230,  231 

§  230.  Administrators  de  Bonis  Non.  —  If  a  sole  or  all  of  sev- 
eral executors  or  administrators  die,  or  resign,  or  be  removed 
from  office  before  the  estate  is  fully  administered,  it  becomes 
necessary  to  appoint  an  administrator  de  bonis  non  —  simply, 
or  with  the  will  annexed,  as  the  case  may  be  —  to  complete 
the  administration.  The  circumstances  under  which  such 
letters  are  granted,  as  well  as  the  powers  and  duties  of  the 
officers  so  appointed,  have  been  fully  considered  in  connection 
with  the  subject  of  administrators  generally;  it  is  sufficient, 
therefore,  to  recapitulate,  in  this  connection,  that  there  must 
be  an  estate  remaining  unadministered,  and  a  vacancy  in  the 
office  of  executor  or  administrator,  otherwise  there  can  be  no 
grant  of  letters  de  bonis  non.  The  considerations  governing 
the  preference  in  ordinary  cases  govern  also  in  respect  of  ad- 
ministrators de  bonis  non,  whether  of  testate  or  intestate  estates, 
except  as  otherwise  indicated  by  statutory  rules. 

§  231.  Administrators  with  Limited  Powers.  —  It  will  appear 
from  a  previous  passage,  that  limited  administrations  may  be 
granted  under  certain  circumstances,  although  discouraged  by 
courts  and  text-writers  in  America,  because  here  the  tendency 
is  to  commit  administration  at  once  to  those  who  may  be  under 
no  present  disability,  with  full  authority  to  complete  the  set- 
tlement of  the  estate  without  disturbing  the  course  of  admin- 
istration by  placing  it  in  the  hands  of  persons  claiming  a  su- 
perior right.  But  the  authority  to  appoint  administrators  ad 
colligendum,  ad  litem,  durante  absentia,  durante  minore  ostate, 
or  for  some  special  purpose,  is  sometimes  resorted  to.  The 
rules  governing  the  court  in  selecting  proper  persons  for  ap- 
pointment in  such  cases  are  necessarily  different  from  those 
controlling  the  appointment  of  general  administrators,  because 
the  fundamental  principle  of  having  the  administration  follow 
the  right  of  property  is  inapplicable.  The  discretion  of  the  court 
seems  to  be  limited  only  by  the  bounds  of  propriety,  and  ex- 
tends to  any  discreet,  qualified  person. 


§§  232, 2331  OF  THE  ADMINISTRATION  BOND.  203 


CHAPTER  XXVII. 

OF  THE  ADMINISTRATION  BOND. 

§  232.  Origin  of  the  Law  requiring  Administration  Bonds.  — 
The  English  statute,  requiring  bond  to  be  given  to  the  ordinary 
upon  committing  administration  of  the  goods  of  any  person 
dying  intestate,  is  incorporated  into  the  statutes  of  every  State 
in  the  Union.  So  great  has  at  all  times  been  the  anxiety  of  leg- 
islators and  judicial  tribunals  in  this  country  to  protect  the  just 
demands  of  creditors  on  the  one  hand,  and  to  \'indicate  the  law- 
ful inheritance  and  dower  to  the  widow  and  next  of  kin,  on 
the  other,  and  so  appropriate  and  eflBcient  in  accomplishing 
this  desired  end  is  the  administration  bond  considered  to  be, 
that  not  a  single  State  has  ever  ventured  upon  the  experiment 
of  substantially  changing  the  law  in  this  respect.  With  few 
exceptions  the  law  in  the  several  States  is  uniform,  requiring 
the  administrator,  whether  with  the  will  annexed,  de  bonis  non, 
temporary,  or  permanent,  to  give  bond  with  two  or  more  suffi- 
cient sureties,  in  a  sum  at  least  double  the  value  of  such  per- 
sonal property  as  may  come  into  his  possession  belonging  to 
the  estate  of  the  decedent. 

§  233.  Bonds  of  Executors.  —  But  under  the  English  law  ex- 
ecutors derive  their  authority  from  the  will,  and  not  from  the 
grant  of  the  ordinary,  or  probate  court;  hence  in  England 
executors  are  not  required  to  give  bond. 

The  English  rule  is  followed  in  a  few  States.  In  most  States, 
however,  no  distinction  is  made  in  the  matter  requiring  bonds 
between  administrators  and  executors,  unless  the  testator  ex- 
pressly direct,  by  provision  in  the  will,  that  the  executors  by 
him  appointed  shall  not  be  required  to  give  bond,  in  which 
case  the  desire  of  the  testator  is  complied  with,  unless  the  court, 
upon  complaint  of  some  creditor,  legatee,  or  other  person  in- 
terested, or  even  upon  its  own  knowledge,  suspect  that  the 
estate  would  be  fraudulently  administered  or  wasted,  when  it 


204  THE   LAW   OF  DECEDENTS'   ESTATES.         [§§  234,  235 

is  made  the  duty  of  the  court  to  cite  the  executor  to  show  cause 
why  bond  should  not  be  given,  and  in  its  discretion  compel  it, 
or  refuse  letters. 

It  is  ob\'ious  that  the  exemption  in  these  States  is  based  upon 
the  testator's  right  to  dispose  of  his  property  in  the  manner 
deemed  best  by  him,  saving  the  rights  of  creditors  and  of  those 
having  legal  claims  upon  him;  which  includes  the  power  to 
exempt  from  the. necessity  of  giving  bond,  as  a  method  of  gift 
to  the  executor.  From  this  it  follows,  that  the  exemption  in 
such  cases  is  personal  to  the  executor  named  in  the  will,  be- 
coming inoperative  on  the  failure  or  refusal  of  such  person  to 
accept  the  trust,  and  has  no  application  to  other  executors  or 
administrators.  But  in  other  States  the  requirement  to  give 
bond  before  an  executor  can  lawfully  take  charge  of  an  estate 
is  as  imperative  and"  absolute  as  it  is  upon  administrators.^ 

§  234.  Power  of  Court  to  order  Bond.  —  In  those  of  the  States 
in  which  an  executor  is  permitted  to  administer  without  giving 
bond,  whether  the  exemption  arise  under  the  statute  or  by 
express  direction  of  the  testator,  his  office  is  one  of  special 
trust  and  confidence,  for  wliich  reason  no  bond  is  required  of 
liim.  But  if  a  com-t  become  satisfied  that  the  executor,  who 
was  solvent  when  named  in  the  will,  is  likely  to  become  insol- 
vent, and  that  there  is  danger  that  he  may  abuse  his  trust,  or 
has  ground  to  suspect  that  he  will  indirectly  and  fraudulently 
administer  the  estate  to  the  prejudice  of  creditors  or  legatees, 
he  will  be  ordered  to  give  bond  with  sufficient  surety  to  protect 
the  estate.  In  such  case  any  person  who  has  an  interest  in  the 
estate  may  interpose  to  move  for  an  order  requiring  security. 

§  235.  Circumstances  rendering  Bond  Necessary.  —  It  is  not 
possible  to  define  with  accuracy  the  precise  circumstances  which 
should  induce  the  probate  court  to  demand  sureties  from  an 
executor  who  is  otherwise  exempt  under  the  law  or  the  direc- 
tion of  the  testator.  Of  these  the  probate  judge  must  neces- 
saril}^  be  the  primary,  and  in  most  cases  the  sole  arbiter,  since 
an  appellate  court  will  not  interfere  with  the  exercise  of  his 
discretion  unless  his  decision  be  plainly  in  conflict  with  the 
letter  or  spirit  of  the  law.    If  the  probate  judge  have  reason  to 

*  The  States  in  which  the  varying  views  mentioned  in  this  section  are 
upheld  are  hsted  in  Woemer  on  Administration,  §  250. 


g§  236,  237]  OF  THE  ADAIIXISTRATION  BOND.  205 

suspect  the  integrity,  the  mental  capacity,  or  even  the  financial 
ability  of  the  executor,  he  should  protect  the  estate  and  the 
interests  of  those  concerned  in  it  by  an  order  requiring  bond 
with  sufficient  sureties.  The  mere  poverty  of  an  executor,  which 
existed  at  the  time  of  the  testator's  death,  without  maladminis- 
tration or  loss  or  danger  of  loss  from  misconduct  or  negligence, 
does  not  authorize  the  requirement  of  a  bond;  nor  the  fact  that 
an  executor  is  not  possessed  of  property  of  his  own  equal  in 
value  to  that  of  the  estate  he  is  to  administer,  if  there  is  no 
ground  to  fear  that  the  trust  funds  in  his  hands  are  in  danger 
from  improvidence  and  want  of  pecuniary  responsibility.  But 
where  other  circumstances  concur,  and  insolvency  arises  after 
the  appointment  by  the  testator,  it  may  become  decisive  on 
the  question  of  ordering  security  to  be  given. 

§  236.  Invalidity  of  Administration  without  Bond.  —  Usually 
it  is  held  that  the  failure  of  the  administrator  to  give  proper 
bond  does  not  avoid  the  letters  of  administration,  but  only 
makes  them  voidable.  The  cancellation  of  the  bond  is  held 
not  to  revoke  the  appointment  yer  se.  Of  course  the  probate 
court  has  power  to  revoke  the  appointment  for  failure  to  give 
bond. 

§  237.  When  Additional  Bond  may  be  ordered.  —  Whenever  it 
becomes  apparent  .that  the  sureties  of  an  administration  bond 
have  become  insolvent,  or  that  the  penalty  in  the  bond  is  in 
too  small  an  amount,  or  that  the  bond  is  from  any  cause  in- 
sufficient or  inadequate,  the  executor  or  administrator  should 
be  ruled  to  give  other  or  further  security.  For  failure  to  comply 
with  such  an  order,  the  executor  or  administrator  may  be  re- 
moved from  office  by  the  judge  of  probate.  Am-  person  in 
interest  may  petition  the  probate  com-t  for  an  order  to  compel 
additional  or  better  security,  and  on  the  trial  of  such  motion  it 
is  sufficient  that  their  interest  be  alleged  under  oath.  As  to 
the  statement  of  facts  necessary  to  authorize  the  probate  court 
to  order  additional  security,  it  is  sufficient  to  refer  to  the  pro- 
visions of  the  statutes  upon  the  subject,  which  generally  indi- 
cate the  circumstances  under  which  further  or  other  security 
may  be  required  with  sufficient  clearness.  Insolvency,  death, 
or  removal  from  the  State  of  the  sureties,  and  inadequacy  of 
the  penalty,  are  the  most  usual.    The  insolvency  of  the  principal 


20G  THE   LAW   OF  DECEDENTS'   ESTATES.         [§§  238,  239 

in  the  bond,  while  the  sureties  remain  solvent,  is  no  ground  for 
increasing  the  amount  of  the  bond. 

§  238.  Nature  of  Liability  of  Sureties.  —  The  liability  of  a 
surety  on  an  administrator's  bond  is  co-extensive  with  the  lia- 
bility of  the  principal  in  the  bond. 

The  general  rule  appears  to  hold  judgments  against  principals 
alone  competent,  but  not  conclusive  evidence  against  the  sure- 
ties, although  it  has  also  been  held  that  such  judgment  is  not 
evidence  at  all  against  the  sureties.  But  since,  by  the  terms 
of  the  administration  bond,  the  refusal  or  neglect  of  the  adminis- 
trator to  obey  or  comply  with  the  judgment  or  decree  of  a 
court  of  competent  jurisdiction  constitutes  in  itself  a  breach  of 
the  bond,  that  judgment  against  the  administrator  alone  must 
generally  be  conclusive  e\ddence,  and  questions  as  to  its  force 
can  rarely  arise.  Where  the  bond  was  not  expressly  conditioned 
to  obey  judgments,  the  admission  has  been  upheld  on  the  theory 
that  sureties  are  the  privies  of  the  administrator,  and  precluded 
from  questioning  any  lawful  order  made  by  the  court  having 
jurisdiction  over  the  principal. 

But  the  judgment,  to  bind  the  sureties,  must  self-evidently 
be  one  that  is  enforceable  against  the  principal;  unless  there 
be  a  judgment  to  be  satisfied  de  bonis  projmis,  the  sureties  are 
not  liable ;  their  liability  does  not  arise  until  the  default  of  their 
principal  has  been  fixed.  Hence  sureties,  though  not  parties 
to  the  record,  nor  beneficially  interested  in  proceedings  against 
executors  or  administrators,  are  allowed  to  appeal  from  judg- 
ments against  their  principals;  and  the  Statute  of  Limitations 
runs  from  the  decree  or  order  fixing  the  liability,  and  not  from 
the  death  of  an  administrator  who  dies  before  the  estate  is 
finally  settled. 

If  there  was  fraud  or  collusion  in  obtaining  the  judgment, 
where  the  failure  to  comply  with  it  constitutes  the  breach  of 
the  bond  complained  of,  the  judgment  cannot  be  attacked  col- 
laterally in  the  suit  on  the  bond,  but  must  be  set  aside  in  a  direct 
proceeding. 

§  239.  Ordering  Further  Bond.  —  The  court  cannot  relieve 
a  surety  from  liability  for  the  future  save  in  pursuance  of  some 
statutory  provision  which  must  be  strictly  complied  with. 

It  is  obvious  that  the  purpose  of  a  new  or  additional  bond 


§  239]  OF  THE  ADMINISTRATION  BOND.  207 

ordered  by  the  court  ex  mero  motu,  or  moved  by  some  interested 
person  for  the  better  protection  of  the  estate,  or  voluntarily 
given  by  the  principal  in  anticipation  of  such  an  order,  is  to  add 
the  security  resulting  from  the  new  to  that  afforded  by  the  old 
bond.  Hence  the  estate  is  protected,  after  the  giving  of  the  new 
bond,  by  both  sets  of  sureties;  those  on  the  first  bond  remaining, 
and  those  on  the  second  bond  becoming,  liable  for  any  breach 
happening  after  the  new  bond  is  given.  Where  the  condition 
of  the  bond  is  that  the  principal  shall  "account  for,  pay,  and 
deliver  all  money  and  property  of  said  estate,"  the  sureties  on 
the  last  bond  are  liable  for  the  loss  following  any  defalcation, 
conversion,  or  devastavit  committed  by  the  principal,  whether 
before  or  after  the  giving  of  the  last  bond,  because  the  non- 
payment after  an  order  by  the  court  having  jurisdiction  con- 
stitutes a  distinct  breach  of  the  bond;  the  same  result  follows 
where  the  terms  of  the  bond  are  to  "do  and  perform  all  other 
acts  which  may  be  required  of  him  at  any  time  by  law."  In 
such  case  both  sets  of  sureties  are  liable:  the  first,  because  the 
conversion  or  other  misconduct  leading  to  the  loss  of  the  assets 
occurred  during  the  time  when  they  were  sureties;  the  last, 
because  the  non-payment  constituted  a  breach  while  they  were 
such. 

The  probate  court  everywhere  has  authority  to  order  a  new 
bond  when  the  existing  bond  for  any  reason  ceases  to  constitute 
the  protection  contemplated  by  the  law.  It  can  do  this  at  the 
instance  of  parties  interested  in  the  estate,  but  sureties  on  a 
bond  cannot  call  for  another  bond  as  substitutionary  for  theirs, 
unless  the  statute  provides  for  such  a  proceeding,  as  is  the 
case  in  many  States. 

There  is  an  important  distinction  between  further  bonds 
given  at  the  instance  of  sureties  in  an  existing  bond,  and  those 
given  in  the  interest  of  the  estate.  When  given  under  statute 
at  the  instance  of  sureties,  it  is  often  provided  that  the  former 
bond  is  discharged  from  any  misconduct  of  the  principal  after 
the  new  bond  is  accepted  and  filed.  If  given  in  compliance  with 
an  order  of  court  in  other  cases,  wherever  it  shall  appear  neces- 
sary and  proper  for  the  protection  of  the  estate,  the  new  bond 
is  simply  cumulative,  and  the  old  sureties  remain  liable  for 
subsequent  breaches  by  the  administrator. 


208  THE   LAW  OF  DECEDENTS'  ESTATES.        [§§  240,  241 

Before  any  order  for  a  new  bond  can  be  made,  there  must  be 
notice,  or  citation  to,  or  appearance  by  the  administrator  or 
executor. 

If  upon  revocation  of  the  letters  of  an  administrator  for  want 
of  a  new  bond  ordered  on  the  motion  of  his  surety,  letters  de 
bonis  non  be  granted  to  the  same  person,  the  former  sm-eties 
are  thereby  fully  discharged,  because  the  administrator  and 
his  successor  are  the  same  person,  so  that  there  can  be  no  ac- 
counting between  the  old  and  the  new  administration,  and  it 
must  be  presumed  that  the  administrator  de  bonis  non  has 
received  from  himself  all  the  assets  belonging  to  the  estate. 

§  240.  Contribution  between  Different  Sureties  in  the  Same 
Estate.  —  The  contribution  between  sureties,  and  of  subroga- 
tion, liability  of  sureties  on  different  bonds  in  the  same  estate, 
etc.,  are  matters  hardly  within  the  scope  of  this  work  and  the 
reader  desiring  to  pursue  it  is  referred  to  the  larger  work.^ 

§  241.  Bonds  given  in  Successive  Trustee  Capacities.  —  It  is 
sometimes  of  importance  to  ascertain  in  what  capacity  a  prm- 
cipal,  who  has  given  bond  as  executor  or  administrator,  and 
also  as  guardian,  trustee,  or  other  fiduciary,  with  different  sure- 
ties, is  chargeable  with  assets.  In  such  case  it  is  to  be  remem- 
bered that,  where  the  obligation  to  pay  and  the  right  to 
receive  are  united  in  the  same  person,  the  law  operates  the 
appropriation  of  the  fund  to  the  discharge  of  the  debt.  Hence, 
where  an  administrator  who  is  also  guardian  of  a  minor  dis- 
tributee, has  made  final  settlement,  and  there  is  an  order  direct- 
ing the  payment  of  the  distributive  shares,  such  order  will 
operate  to  charge  him  in  his  capacity  as  guardian,  and  relieve 
his  sureties  on  the  administration  bond;  but  until  such  final 
settlement  is  made,  or  the  assets  accounted  for,  the  former 
sureties  remain  liable. 

But  the  efficacy  of  bonds  cannot  be  permitted  to  be  endan- 
gered or  destroyed  by  apphing  this  doctrine  to  the  transfer  of 
the  mere  indebtedness  of  a  fiduciary  from  himself  in  one,  to 
himself  in  another  capacity,  so  as  to  exonerate  his  sureties  in 
the  former  capacity,  and  either  throw  the  burden  on  another  set 
of  sureties,  or  entail  the  loss  on  the  beneficiaries,  without  some 
overt  act  manifesting  the  transfer  of  actually  existing  assets. 
^  Woemer  on  Administration,  §  255. 


§§  242,  243]  OF  THE  ADMINISTRATION  BOND.  209 

§  242.  Technical  Execution  of  the  Bond.  —  The  form  in  which 
bonds  are  to  be  taken  from  executors  and  administrators  is 
generally  prescribed  by  statute,  and  errors  may  be  avoided  by 
the  exercise  of  ordinary  care  and  attention  on  the  part  of  the 
probate  judge  or  clerk.  In  some  instances,  these  bonds  have 
been  construed  with  technical  strictness  against  the  obligees, 
and  held  void  as  statutory  bonds  where  they  deviated  from 
the  statutory  form;  but  the  general  rule  is  to  construe  them  rig- 
orously against  the  obligors,  and  with  the  utmost  liberality  in 
favor  of  the  parties  to  be  protected  by  them. 

Errors  and  omissions  in  the  bond  can  be  controlled  by  other 
records  in  the  case. 

It  is  not  the  function  of  this  work  to  go  into  the  details  of 
the  subject  of  bonds,  and  if  such  are  desired  the  reader  is  re- 
ferred to  the  larger  work  on  Administration.^ 

§  243.  Amount  of  the  Penalty.  —  The  amount  in  which  se- 
curity is  to  be  given  is  necessarily  left  to  the  discretion  of  the 
probate  court,  the  statutes  generally  fixing  a  minimum  only, 
below  which  the  amount  must  not  be  ordered.  In  almost  all 
States  this  minimum  penalty  is  fixed  at  double  the  value  of  the 
personal  property  of  any  kind,  including  the  proceeds  of  sale 
of  real  estate,  where  the  power  to  sell  is  given  by  will,  which 
may  come  into  the  hands  of  the  executor  or  administrator  by 
virtue  of  his  office.  The  clerk  and  court  taking  the  bond  are 
required  to  satisfy  themselves  of  the  solvency  of  the  sureties 
offered,  and  for  this  purpose  may  examine  the  sureties  them- 
selves, the  principals,  or  any  other  person,  under  oath;  and  the 
bond  should  not  be  accepted  unless  signed  by  a  sufficient  num- 
ber of  sureties  who  appear  to  be  perfectly  solvent,  owning  prop- 
erty in  excess  of  their  debts  and  liabilities,  and  of  what  may  be 
exempt  from  execution  under  the  law;  and  the  aggregate  amount 
of  the  property  so  owned  by  the  several  sureties  should  equal 
at  least  the  penalty  of  the  bond.  It  is  generally  required  that 
the  sureties  be  inhabitants  of  the  State;  and  certain  classes  of 
persons  are  in  some  States  forbidden  from  being  received  as 
sureties  on  administration  bonds.  But  such  proxasions  are 
considered  directory  merely,  and  not  designed  to  invalidate 
the  bond  where  the  law  is  disregarded. 

^  Woemer  on  Administration,  §  256. 


210  THE  LAW   OF  DECEDENTS'  ESTATES.  [§  244 

§  244.  Joint  or  Separate  Bonds.  —  When  there  are  several  ex- 
ecutors or  administrators,  they  may,  in  some  of  the  States, 
either  give  one  joint  bond,  or  each  a  separate  bond.  Where 
separate  bonds  are  given,  each  must  be  in  a  penalty  as  high  as 
that  required  for  a  joint  bond,  because  each  executor  or  ad- 
ministrator is  lawfully  entitled  to  take  into  possession  and  ad- 
minister any  or  all  of  the  assets,  and  the  court  cannot  control 
them  in  this  right. 

At  common  law,  under  which  executors  were  not  required  to 
give  bond,  an  executor  was  not  liable  for  the  malfeasance  of  a 
co-executor,  unless  it  could  be  shown  that  he  had  concurred 
therein,  or  that  there  had  been  joint  possession  of  the  estate, 
from  which  it  would  be  inferred  that  one  executor  had  yielded 
to  the  control  of  the  other,  who  squandered  it.    The  same  rule 
is  adhered  to  in  America  as  to  co-administrators  and  co-execu- 
tors; the  executor  or  administrator,  as  5z^A,  is  not  liable  for  waste 
committed  by  his  co-executor,  nor  for  assets  which  the  latter 
received  and  misapplied,  without  his  own  knowledge  or  fault. 
How  far  the  giving  of  a  joint  bond  affects  the  liability  of  one 
executor  for  the  acts  of  the  other  is  variously  held,  the  subject 
being  largely  influenced  by  construction  of  local  statutes.    The 
mere  gi\dng  of  the  joint  bond  has  been  held  to  be  an  agreement 
to  join  in  all  acts  of  administration,  thus  rendering  each  qua 
executor  liable  for  the  acts  of  the  other  under  the  law  stated 
in  the  preceding  paragraph,  without  reference  to  liability  to  suit 
on  the  bond.    In  most  States  it  is  held  that  the  effect  of  giving 
a  joint  bond  is  to  make  the  principals  liable  for  each  other  as 
sureties  as  long  as  the  joint  administration  continues.    Devel- 
oping this  view,  principals  are  held  bound  to  protect  the  joint 
sureties  from  the  effects  of  each  other's  acts.    Under  this  view 
sureties  would  not  be  liable  to  one  of  the  joint  principals  for 
default  of  the  other.    But  in  some  States  the  doctrine  that  each 
principal  is  surety  for  the  other  is  denied,  and  it  is  asserted 
that  they  are  jointly  liable  for  joint  acts,  and  each  separately 
liable  for  separate  acts,  because  they  signed  as  principals  and 
not  as  sureties.    The  bond  is  analyzed  into  two  bonds  which 
are  merely  physically  united.     Under  this  view  one  executor 
could  recover  on  the  bond  against  the  sureties  for  the  default 
of  the  other. 


§§245,246]  OF  THE  ADMINISTRATION  BOND.  211 

§  245.  Approval  and  Custody  of  Bonds.  —  The  administration 
bond  must  be  approved  and  attested  or  certified  by  the  court, 
judge,  or  clerk  taking  the  same;  If  taken  by  the  judge  or  clerk 
in  vacation,  it  should  be  reported  to  and  approved  by  the  court 
at  its  next  regular  term;  It  should  be  recorded  In  a  book  kept 
for  that  purpose,  and  the  original  filed  with  the  papers  pertain- 
ing to  the  estate,  and  a  careful  compliance  with  the  require- 
ments of  the  statute  with  reference  to  the  taking  of  bonds  is 
the  duty  of  judges  and  clerks.  But,  while  the  courts  of  some 
States  require  a  strict  and  technical  adherence  to  the  directions 
of  the  statute,  and  hold  bonds  insufficient  which  are  not  taken 
in  conformity  therewith,  these  formalities  are  generally  deemed 
to  be  directory  only,  and  a  variance  from  them  In  matters  not 
essential  to  the  nature  of  the  contract  of  the  sureties  will  not 
affect  the  validity  of  the  bond.  An  administrator's  bond  Is  an 
official  document,  and  cannot  be  removed  from  the  office;  If 
needed  as  evidence  a  certified  copy  Is  sufficient.  If  It  as  well 
as  the  record  thereof  Is  lost  or  destroyed,  it  may  be  substituted 
as  the  record  of  a  probate  court. 

§  246.  Special  Bonds.  —  In  some  States  the  administrator's 
bond  does  not  cover  liability  arising  for  sales  of  real  estate  under 
order  of  court.  A  special  bond  Is  required.  The  subject  Is 
discussed  hereafter  in  connection  with  sale  of  real  estate  to 
pay  debts. 


212  THE   L.\W  OF  DECEDENTS'  ESTATES.  [§  247 


CHAPTER  XXVIII.' 

OF  THE  PROCEDURE  IN    OBTAINING    LETTERS   AND    QUALIFYING 
FOR    THE   OFFICE. 

§  247.  The  Petition  for  Grant  of  Letters  Testamentary  or 
of  Administration.  —  There  was  occasion  in  a  former  chapter 
to  point  out  the  diversity  of  decisions  upon  the  question  of  the 
vahdity  or  conclusiveness  of  the  judgments  and  decrees  of 
probate  courts,  and  to  show  that  in  some  of  the  States  these 
are  assailable  in  collateral  proceedings,  and  will  be  held  void 
unless  the  record  recites  all  the  facts  upon  which  the  jurisdic- 
tional power  of  the  court  to  render  them  depends.  In  these 
States  the  rule  is  stated  to  be,  that  the  record  must  show  the 
facts  giving  jurisdiction,  or  the  judgment  rendered  will  be  held 
void.  In  the  majority  of  States,  however,  the  rule  is  less  strin- 
gent, and  jm-isdiction  will  be  either  presumed  or  inferred  from 
such  facts  as  may  be  stated,  or  from  the  judgment  or  decree 
itself.  So,  for  instance,  the  statement  in  the  petition  referring 
to  the  decedent  as  "late  of  "  a  county  named,  is  held  a  sufficient 
averment  of  the  decedent's  domicile  in  such  county  at  the  time 
of  his  death.  Although  the  petition  must  be  verified,  and  the 
averment  of  the  applicant  "to  the  best  of  his  knowledge  and 
belief"  is  insufficient,  yet  objection  on  this  score  cannot  be 
made  in  a  collateral  proceeding,  and  does  not  avoid  the  surro- 
gate's jurisdiction. 

But  while  it  may  not  in  all  cases  be  absolutely  necessary  to 
support  the  jurisdictional  power  of  the  court  by  a  recital  of  all 
the  facts,  yet  it  is  of  the  highest  importance  that  a  record  should 
be  made  of  all  facts  and  circumstances  which  call  forth  the 
judicial  powers  of  the  court.  The  petition  of  the  applicant  for 
letters  affords  the  most  convenient  means  for  proper  allegations, 
so  that  the  finding  upon  it  may  constitute  an  adjudication  of  all 
the  necessary  facts.  The  averments  should  include,  among  other 
tilings,  first,  the  death  of  the  person  whose  estate  is  to  be  ad- 


§  21S]  THE   PROCEDURE   IN   OBTAINING   LETTERS.  213 

ministered,  his  place  of  domicile  at  the  time  of  his  death,  and 
whether  he  died  testate  or  intestate;  next,  if  he  left  a  will,  that 
it  has  been  admitted  to  probate,  and  the  name  or  names  of  the 
persons  nominated  executors;  third,  if  the  application  be  for 
letters  of  administration  with  the  will  annexed,  that  no  executor 
has  been  named,  or  that  all  so  named  have  renounced,  died,  or 
are  incompetent  to  serve,  and  the  circumstances  conferring 
upon  the  apphcant  the  right  to  administer  the  estate;  fourth, 
the  names  of  the  widow,  husband,  next  of  kin,  or  heirs,  as  the 
case  may  be;  fifth,  the  nature  of  the  goods,  effects,  or  other  es- 
tate left  by  the  deceased,  and  its  estimated  value;  sixth,  if  the 
application  be  for  letters  of  administration  generally,  the  re- 
lation or  kinship  between  the  deceased  and  the  applicant; 
seventh,  if  the  application  be  for  letters  de  bonis  nan,  the  death, 
removal,  or  resignation  of  the  former  executor  or  administrator, 
or,  if  there  were  several,  of  all  of  them;  eighth,  if  the  decedent 
was  at  the  time  of  his  death  a  non-resident  of  the  county,  the 
existence  of  property  within  the  county,  or  other  circumstance 
showing  the  necessity  of  administration;  and,  generally,  what- 
ever facts  may  exist  which,  under  the  law  of  the  State  and  the 
particular  circumstances,  may  have  a  bearing  upon  the  jims- 
diction  of  the  court  to  grant  letters,  the  right  of  the  applicant 
to  be  appointed,  and  the  amount  of  the  bond  to  be  required, 
or  whether  any  bond  be  necessary. 

§  248.  Notice  to  Parties  entitled  to  administer.  —  It  has  al- 
ready been  shown  that  letters  granted  to  a  stranger,  or  to  one 
whose  claim  to  the  administration  is  inferior  to  that  of  another, 
will  be  revoked  upon  the  application  of  one  having  a  superior 
right,  unless  such  applicant  had  been  notified  or  cited  before  the 
grant  was  made.  The  grant  to  one  of  several  parties  having 
equal  claims  will  not,  as  a  general  thing,  be  revoked  for  the  want 
of  notice,  on  the  application  of  another,  unless  there  be  a  statu- 
tory requirement  to  give  notice  or  issue  citation  to  all  entitled; 
but  it  is  evidently  wise  and  just  that  notice  should  be  given  to 
all  who  are  in  the  same  degree  of  preferment,  so  that  the  most 
suitable  person  may  be  selected,  and  possible  disqualifications 
or  objections  pointed  out  before  the  appointment  is  made.  The 
petition  of  the  applicant  must,  as  already  stated,  show,  among 
the  other  facts  necessary  to  give  the  court  jurisdiction,  his 


214  THE  L.\\\*  OF  DECEDENTS'  ESTATES.  [§  249 

interest  in  the  estate  to  be  administered;  on  the  same  principle, 
one  sho'v\'ing  no  interest  cannot  intervene  or  object  to  an  ap- 
pointment. And  where  the  statute  provides  for  citation,  it 
must  be  served  upon  all  of  those  ha\'ing  a  prior  right,  who  have 
not  renounced,  and  must  conform  to  the  requirements  of  the 
statute.  Failure  to  cite  the  widow,  or  the  next  of  kin,  is  an 
irregularity,  for  which  the  letters  may  be  revoked,  but  does  not 
generally  render  them  absolutely  void;  yet  it  has  sometimes 
been  held  to  avoid  the  achninistration.  But  one  having  such 
notice  as  would  be  conveyed  by  the  statutory  mode  of  serxice 
cannot  complain  that  the  statute  was  not  observed;  nor  one 
who  voluntarily  enters  an  appearance. 

All  parties  to  whom  citation  or  notice  is  given,  or  who  have 
a  beneficial  interest  in  the  estate  to  be  administered,  may  ap- 
pear and  oppose  the  appointment  of  a  particular  applicant; 
and  the  interest  giving  such  a  person  a  standing  in  court  may 
be  shown  at  the  hearing,  without  having  been  previously 
adjudicated. 

The  statute,  in  some  of  the  States,  prescribes  a  limitation  to 
the  right  of  granting  administration  in  a  given  number  of  years 
after  the  decedent's  death. 

§  249.  Nature  of  the  Proceeding.  —  The  grant  of  letters  is 
said  to  be  a  proceeding  in  rem  in  the  strictest  sense,  and  in  a 
contest  for  the  right  of  administration  there  are  strictly  no 
parties  plaintiff  or  defendant.  The  applicants  are  all  actors, 
some  of  whom  may  withdraw  and  others  come  in  at  any  time 
during  the  progress  of  the  cause,  even  after  appeal.  The 
decedent's  property  rights  should  not  be  litigated  in  such  pro- 
ceedings. Objections  to  the  grant  of  letters  will  be  heard  from 
any  person  claiming  under  oath  to  be  interested.  If  his  right 
to  appear  is  disputed,  the  question  will  be  decided  upon  proof, 
and  if  it  be  found  that  he  is  a  mere  stranger,  and  not  interested 
as  creditor,  heir,  or  legatee,  he  cannot  be  heard  even  to  object 
that  there  are  other  persons  having  priority  over  the  applicant 
under  the  law.  The  grant  must  be  during  the  term  succeeding 
the  publication  of  notice  and  citation  by  the  clerk,  where  such 
notice  and  citation  are  required;  but  the  application  may  be 
continued  from  term  to  term  by  order  of  the  court,  without  new 
notice:  parties  in  interest  are  bound  to  take  notice  of  such  con- 


§§  250,  251]     THE  PROCEDURE  IN   OBTAINING   LETTERS.  215 

tinuances;  but  if  nothing  is  done  in  pursuance  of  the  notice 
given  and  no  continuance  or  postponement  had,  the  notice 
given  lapses  and  subsequent  proceedings  are  void. 

§  250.  Nature  of  the  Decree,  and  its  Authentication.  —  Letters 
testamentary  or  of  administration  can  be  granted  only  by  the 
decree  or  order  of  the  probate  court  in  term  time ;  but  pro\ision 
is  made  in  most  of  the  States,  that  during  vacation  letters  may 
be  issued  by  the  judge  or  clerk  of  the  court,  which  will  be  rati- 
fied by  the  court  at  the  next  regular  term  thereof  unless  valid 
objection  be  made  against  the  appointee. 

The  delivery  of  letters  is  not  necessary.  Possession  of  letters 
by  the  person  to  whom  they  purport  to  have  been  granted,  is 
prima  facie  proof  of  delivery;  and  the  proper  proof  of  appoint- 
ment is  the  letters  of  administration  or  a  certified  copy  thereof, 
or  of  the  order  of  appointment. 

§  251.  Oath  of  Office.  —  The  oath  of  office  which  executors 
and  administrators  are  required  to  take  before  entering  upon 
the  discharge  of  their  duties  is  the  decisive  ceremony  clothing 
them  with  the  title  to  the  personal  property  of  the  deceased 
testator  or  intestate,  and  all  the  authority  and  responsibility 
connected  with  their  office.  The  refusal  of  an  executor  to  take 
this  oath  is,  even  in  England,  tantamount  to  a  refusal  of  the 
executorship,  and  must  be  so  recorded.  So  the  refusal  to  give 
bond  and  take  the  oath  required  by  the  law  amounts  to  the 
refusal  of  the  office  of  administrator.  The  form  of  the  oath  is 
usually  prescribed  by  statute,  and  may  be  administered  by  the 
judge  or  clerk  of  the  probate  court;  but  this  is  not  essential; 
it  may  be  taken  before  any  officer  competent  to  administer 
oaths,  and  transmitted  to  the  probate  court.  Unless  they 
qualify,  neither  an  executor  nor  an  administrator  hasauthority 
to  act;  what  they  attempt  to  do  as  such  is  void,  or  the  act  of 
an  executor  de  son  tort. 


216  THE  LAW  OF  DECEDENTS'  ESTATES.        [§§  252,  253 


CHAPTER  XXIX. 

ON  THE  REVOCATION  OF  LETTERS  TESTAMENTARY  ANT)   OF 
ADMINISTRATION. 

§  252.  Conclusiveness  of  the  Decree  or  Order  granting  Letters. — 
Letters  testamentary  and  of  administration,  granted  by  a  court 
lia\4ng  jm-isdiction  for  such  purpose,  are,  while  unrepealed, 
conclusive  evidence  of  the  authority  of  the  grantees,  and  cannot 
be  impeached  collaterally,  even  for  fraud,  although  they  may 
be  revoked  or  annulled  in  the  method  pointed  out  by  statute 
to  that  end,  in  a  direct  proceeding,  or  by  appeal.  Until  such 
revocation  by  the  decree  of  a  competent  court,  or  appeal,  it 
cannot  be  questioned  in  either  a  common-law  or  chancery  court, 
and  it  follows  that  the  acts  of  an  executor  or  administrator  are 
valid,  even  though  the  probate  of  the  will  or  the  grant  of  letters 
was  erroneous,  or  obtained  upon  fraudulent  representations, 
or  under  a  forged  will. 

Letters  granted  by  a  court  having  no  jurisdiction,  being  void, 
gain  no  validity  by  the  mere  lapse  of  time.  Sales  of  real  estate 
have  been  held  void,  and  the  purchaser  for  that  reason  held  to 
have  obtained  no  title,  more  than  twenty  years  afterw^ard. 
An  appointment  made  by  a  court  having  no  jurisdiction  is  a 
nullity;  hence  the  appointment  of  another,  by  a  court  having 
jurisdiction,  as  administrator  of  the  same  estate,  is  good  without 
formally  annulling  the  first  appointment. 

§  253.  Jurisdiction  to  revoke  Letters.  —  The  power  to  revoke 
the  authority  of  executors  (which  in  England  is  usually  termed 
the  revocation  of  probate)  and  of  administrators  is  in  some 
States  exercised  by  courts  of  equity,  when  they  obtain  juris- 
diction over  the  executor  or  administrator,  under  the  well- 
known  rule,  that,  where  a  court  of  equity  obtains  jurisdiction 
for  one  purpose,  it  will  retain  it  until  full  and  satisfactory  jus- 
tice is  rendered  to  all  the  parties  concerned.  Thus,  in  a  case 
calling  for  the  intervention  of  chancery,  an  executor  may  be 


§  254]  ON  THE   REVOCATION   OF  LETTERS.  217 

restrained  from  squandering  and  disposing  of  the  property 
of  his  testator,  and  removed,  or  a  receiver  appointed;  and  an 
administrator  may  be  removed.  But  where  this  authority 
exists  in  courts  of  chancery  at  all,  it  will  be  exercised  in  extreme 
cases  only. 

In  most  of  the  States,  however,  the  power  to  revoke  the  letters 
granted,  or,  as  it  is  more  usually  termed,  to  remove  an  executor 
or  administrator,  is  vested  exclusively  in  the  probate  courts; 
superior  courts  exercising,  in  such  cases,  appellate  jurisdiction 
only,  or  granting  the  assistance  of  equity  where  the  lower 
court  is  -^\'ithout  the  necessary  power  to  accomplish  justice. 

§  254.  Recall  of  Letters  granted  without  Authority  in  the  Court. 
—  It  is  evident  that  the  judgment  or  decree  of  any  court  is 
conclusive  and  binding  upon  the  court  rendering  it,  as  well  as 
against  all  the  world.  Hence,  where  the  probate  court  has  once 
regularly  conferred  the  appointment,  it  cannot  remove  the  in- 
cumbent except  for  causes  recognized  by  the  law  as  sufficient, 
and  in  the  manner  authorized  by  statute.  But  it  is  an  inlierent 
power  in  every  judicial  tribunal  to  correct  an  error  which  it 
may  have  committed,  when  no  positive  rule  of  law  forbids  it. 
It  is,  therefore,  the  duty  of  the  court,  upon  the  application  of 
any  party  in  interest,  or  even  ex  mero  motu,  to  annul  or  revoke 
letters  granted  upon  proof  of  the  death  of  a  person  who  subse- 
quently appears  alive;  or  where  it  is  shown  that  there  was  no 
jurisdiction,  the  decedent  being  domiciled  at  the  time  of  his 
death  in  another  county,  or  that  he  was  a  non-resident  of  the 
State  having  no  property  therein,  or  that  the  will  was  admitted 
to  probate  tlirough  fraud  or  error,  or  that  a  later  will  or  codicil 
should  be  admitted;  or  where  a  will  is  found  to  have  been  al- 
ready probated,  or  is  discovered  after  grant  of  letters  of  ad- 
ministration generally;  or  where  an  administrator  with  the 
vrA\  annexed  is  appointed  in  derogation  of  the  executor's  right, 
or  one  not  preferred  is  appointed  administrator  before  the  ex- 
piration of  the  period  during  which  preference  is  given  by  stat- 
ute to  others;  or  where  administration  is  improperly  granted, 
there  being  no  estate  to  administer;  or  where  it  is  granted  to  a 
person  or  by  a  judge  disqualified,  or  by  mistake  to  one  not  pre- 
ferred, or  who  refuses  to  give  bond;  or  where  an  administrator 
de  bonis  non  was  appointed  while  there  was  an  acting  executor 


21S  THE  L.\W  OF  DECEDENTS'  ESTATES.  [§  255 

or  administrator.  In  all  of  these  cases  the  letters  granted  are 
either  void  —  in  which  event  it  is  the  duty  of  the  court  to  re- 
voke, or  rather  to  declare  null,  its  appointment,  so  as  to  correct 
the  record  and  prevent  further  mischief  from  being  done,  as 
soon  as  the  true  facts  become  known  to  it,  whether  by  evidence, 
or  otherwise  —  or  they  are  voidable,  and  may  be  revoked  upon 
the  application  of  some  person  having  an  interest  in  the  estate, 
and  upon  notice  or  citation  to  the  person  to  be  removed. 

§  255.  Theory  of  Removal  for  Cause.  —  The  grounds  upon 
which  an  executor  or  administrator  will  be  removed  for  cause 
are  manifold,  and  are  commonly  designated  in  the  statutes. 

In  the  nature  of  things,  a  power  which  may  be  invoked  in 
such  a  variety  of  instances  must  largely  depend  upon  the  dis- 
cretion of  the  judge  for  its  proper  exercise.  Such  discretion 
vested  in  judges  of  probate  is  on  the  one  hand  not  an  arbitrary 
one,  as  at  one  time  it  was  supposed  to  be  in  the  ordinary  at 
common  law,  who  might  repeal  an  administration  at  his  pleas- 
ure, nor  on  the  other  is  it  so  narrow  as  to  prevent  liim  from 
exercising  it  in  furtherance  of  the  paramount  end  and  aim  of 
the  law,  which  is  the  safety  and  efficient  administration  of  the 
estate.  Where  the  appointment  of  an  administrator  is  left  to 
the  unconditioned  discretion  of  the  judge,  he  will  be  controlled 
by  such  considerations  in  making  the  selection;  but  having 
made  it,  the  appointee  can  be  removed  only  upon  proof  of  such 
facts  as  constitute  a  breach  of  the  trust,  in  ascertaining  which 
the  judge  may  be  aided  by  considering  v/hether  the  conduct 
or  acts  complained  of  render  the  principal  liable  on  his  bond; 
since,  as  a  general  proposition,  the  liability  of  the  surety  arises 
only  upon  misconduct  of  the  principal.  And  there  should  never 
be  a  revocation  without  due  notice  to  the  party,  informing  him 
of  the  matters  alleged  against  him,  and  enabling  him  to  defend. 

Due  notice,  however,  as  far  as  the  removal  of  the  executor 
or  administrator  is  concerned,  as  distinguished  from  the  power 
to  render  a  personal  judgment  against  him,  need  not  always  be 
personally  served.  When  he  has  left  the  State,  notice  by  pub- 
lication as  provided  by  statute  is  sufficient.  He  submitted  to 
that  form  of  service  when  he  accepted  appointment  under  the 
statute.^ 

1  Michigan  Trust  Co.  v.  Ferry,  175  Fed.  667. 


§§  256,  257]  ON  THE   REVOCATION   OF  LETTERS.  219 

§  256.  What  Misconduct  justifies  Revocation  of  Letters.  — 
There  are  numerous  adjudications  indicating  the  particular 
acts  or  Hne  of  conduct  which  require  the  removal  from  office 
of  an  executor  or  administrator,  as  well  as  those  which  do  not 
Justify  the  revocation  of  their  authority.  The  most  fruitful 
source  of  trouble  and  litigation  is  the  unwarranted  application 
of  the  trust  funds  to  the  private  use  of  the  executor,  adminis- 
trator, guardian,  or  curator,  and  one  which  but  too  often  leads 
to  their  own  financial  ruin,  as  well  as  the  destruction  of  the 
estates  committed  to  their  care.  Absurd  as  it  may  appear,  yet 
many  of  the  cases  under  this  branch  of  the  law  concern  those 
who  in  good  faith  believe,  and  many  more  those  who  make  a 
specious  pretence  of  believing,  that  a  guardian  or  administrator, 
having  been  appointed  to  take  charge  of  an  estate,  and,  it  may 
be,  given  bond  for  its  faithful  administration,  may  legally  treat 
the  funds  as  their  own,  being  liable  only  to  produce  them  when 
the  proper  time  shall  arrive.  An  estate  in  the  hands  of  such  a 
person  is  not  safe,  and  it  would  seem  that  he  is  "unsuitable  to 
execute  the  trust  reposed  in  him." 

However,  errors  of  judgment  not  amounting  to  malfeasance 
are  not  ground  for  removal.  An  executor  may  commit  errors 
in  his  accounts,  or  make  mistakes  in  his  construction  of  the  vdll; 
these  the  court  will  correct,  but  will  not  remove  the  executor, 
unless  there  is  wilful  misconduct,  waste,  or  improper  disposition 
of  the  assets. 

Bankruptcy  and  insoh'ency  may  be  good  cause  for  the 
removal  of  an  administrator,  although  it  does  not  ipso 
facto  impair  his  official  authority;  but  poverty  is  not,  unless 
the  condition  of  the  appointee  has  subsequently  become 
changed. 

The  spirit  in  which  courts  exercise  their  judicial  discretion  on 
motions  to  remove  executors  and  administrators  can  best  be 
studied  in  illustrative  cases.^ 

§  257.  Who  may  move  for  Revocation.  —  Courts  will  not  per- 
mit one  who  has  no  direct  interest  in  the  estate  or  who  cannot 
be  benefited  by  the  order  which  he  prays  for,  to  prosecute  for 
the  removal  of  an  executor  or  administrator.    Hence  it  is  re- 

1  Numerous  authorities  are  collected  in  the  text  and  notes  of  Woemer 
on  Administration,  §§  270  and  271. 


220  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  257 

quired  that  in  the  petition  or  motion  the  interest  of  the  party 
presenting  it  shall  be  stated,  and  wherein  it  has  been  or  is  about 
to  be  affected  by  the  party  to  be  removed.  And  it  is  not  suffi- 
cient to  charge  mismanagement,  misapplication  of  funds,  or 
maladministration  in  general  terms,  but  the  facts  must  be  stated 
which  constitute  the  alleged  cause  for  removal,  and  must  be 
supported  by  affidavit.  Nor  will  a  motion  for  removal  be  heard 
in  a  collateral  proceeding,  but  only  by  direct  action,  upon  pe- 
tition and  citation,  the  service  of  which  is  a  jurisdictional  fact. 
Having  appeared,  however,  he  cannot  subsequently  object 
that  he  had  no  notice.  The  motion  may  be  made  by  a  creditor 
for  the  removal  of  an  administrator  who  was  appointed  in 
contravention  of  the  creditors'  right  within  the  time  during 
which  they  have  priority  over  strangers,  or  when  he  has  been 
injured  by  the  maladministration  alleged;  by  the  widow  of  the 
decedent;  by  a  legatee  under  a  will,  when  the  judgment  de- 
claring it  null  has  been  appealed  from;  by  the  assignee  of  a 
devisee  or  legatee;  by  sureties  conceiving  themselves  in  danger 
from  the  conduct  of  the  administrator;  and,  a  fortiori,  by  any 
of  the  heirs  of  a  solvent  estate.  But  only  next  of  kin  may  con- 
test the  appointment  of  an  administrator  on  the  ground  that 
he  is  not  next  of  kin.  One  not  of  the  next  of  kin  has  no  right  to 
ask  for  the  removal  of  the  authority  of  the  public  administrator. 
One  whose  appointment  as  administrator  is  void  because  an 
administrator  had  already  been  appointed  by  a  court  whose 
appointment  was  voidable  but  not  void,  has  no  such  interest 
in  the  estate  as  to  enable  him  to  move  for  revocation  of  the 
voidable  appointment.  Where  a  non-resident  is  disqualified, 
he  is  incompetent  to  petition  for  the  revocation  of  letters  granted 
to  others.  The  creditor  of  an  executrix,  but  not  of  the  testator, 
has  no  interest  in  the  estate.  If  the  application  for  the  removal 
is  on  the  ground  of  premature  appointment,  it  must  be  made 
within  such  time  after  the  party  in  priority  learns  of  the  ap- 
pointment as  the  statute  gives  him  originally  after  the  death 
of  the  intestate.^ 

It  seems  that  any  person  interested  in  the  estate  may  prose- 
cute for  the  removal  of  an  executor  or  administrator,  independ- 

^  The  cases  on  which  the  illustrations  in  this  section  are  based  are  cited 
in  Woerner  on  Administration,  §  272. 


§§  258,  259]  ON  THE   REVOCATION   OF   LETTERS.  221 

ently  of  other  parties  having  a  hke  interest,  unless  the  court 
should  require  such  other  parties  to  be  brought  in. 

§  258.  Resignation  of  Executors  and  Administrators.  —  At  the 
common  law,  any  act  of  intermeddling  with  the  effects  of  an 
estate  by  the  person  nominated  as  executor  bound  him  as  an 
acceptance  of  the  executorship,  and  he  could  not  subsequently 
renounce  his  character  as  executor,  nor  resign  the  trust.  So 
with  regard  to  the  office  of  administrator;  the  probate  court 
has  no  power  to  accept  the  resignation  of  an  administrator 
once  duly  appointed  and  qualified,  without  statutory  authoriza- 
tion. But  where  the  common  law  as  thus  stated  is  in  force,  the 
courts  in  several  cases  have  treated  an  accepted  resignation  as 
the  substantial  equivalent  of  a  removal  by  the  court. 

It  is  now  generally  provided  by  statute  in  the  several  States, 
that  for  reasons  deemed  sufficient  by  the  probate  court  it  may 
accept  the  resignation  of  an  executor  or  administrator,  and 
relieve  him,  after  settlement  of  his  account,  from  the  trust. 

The  right  to  resign  is  not,  however,  an  absolute  or  arbitrary 
right;  it  can  only  be  accorded  upon  proof  of  circumstances 
showing  it  to  be  consistent  with  the  interests  of  the  estate. 
Hence  the  parties  interested  in  the  estate  should  have  notice 
of  the  intended  resignation,  either  by  publication  or  otherwise. 

§  259.  Consequences  of  the  Revocation  of  Letters.  —  The  most 
important  distinction  to  be  considered  in  determining  the  con- 
sequences of  the  revocation  of  letters  is  between  grants  which 
are  void,  and  such  as  are  merely  voidable,  —  the  mesne  acts 
of  an  executor  or  administrator  between  the  grant  and  its  rev- 
ocation being,  in  the  former  case,  of  no  validity,  and  in  the 
latter  protecting  those  acting  in  reliance  thereon.  The  neces- 
sity of  this  rule  is  self-evident:  a  void  grant  is  no  grant,  and 
acts  depending  for  their  validity  upon  official  authority  in  the 
actor  are  wholly  void  in  the  absence  of  such  authority,  while 
on  the  other  hand  acts  before  revocation,  under  an  appointment 
merely  voidable  —  that  is,  one  good  until  revoked  —  are  en- 
titled to  full  protection. 

The  cases  giving  rise  to  the  application  of  this  principle  in 
America  turn  mostly  upon  the  question  of  the  residence  of  the 
decedent  at  the  time  of  his  death;  for  it  was  formerly  held  in 
many  States,  that  the  probate  court  has  no  jurisdiction  to 


222  THE   LAW  OF  DECEDENTS'  ESTATES.  [§  259 

grant  probate  or  letters  unless  the  decedent  died  an  inhabitant 
of  the  county,  or  lea\'ing  property  therein,  and  that  letters 
granted  where  such  was  not  the  fact,  and  all  acts  done  upon 
the  authority  thereof,  are  void.  This  doctrine,  as  we  else- 
where have  seen,  is  now  very  generally  giving  way  to  the  safer 
one  of  holding  them  voidable,  but  good  until  revoked. 

So,  also,  the  discovery  of  a  will  will  not  make  void  letters  of 
administration  granted  generally;  but  until  revoked  all  persons 
acting  in  good  faith  with  the  administrator  will  be  protected. 

If  the  grant  is  only  voidable,  another  distinction  is  taken  be- 
tween a  proceeding  by  citation  to  revoke  the  letters  granted, 
and  an  appeal  from  the  judgment  of  the  coiui;  of  probate,  which 
is  taken  to  reverse  a  former  sentence.  The  appeal  suspends, 
until  its  termination,  the  powers  of  the  i^erson  against  whose 
appointment  it  is  taken,  and  all  of  his  intermediate  acts  are 
ineffectual. 

A  revocation  upon  citation,  where  the  grant  of  letters  was 
voidable  only,  leaves  all  la-u-ful  acts  done  by  the  first  adminis- 
trator valid  and  binding,  as  though  his  authority  had  not  been 
questioned.  This  is  self-evident,  and  it  would  be  a  waste  of  time 
and  space  to  examine  the  very  numerous  cases  so  holding. 

Since  the  removed  executor  or  administrator  has  no  fm-ther 
authority  to  act,  or  bind  the  estate,  he  cannot  be  held  liable  for 
any  act  affecting  the  estate  after  his  removal.  To  a  suit  pending 
against  him  at  the  time  of  his  removal  he  may  plead  the  revo- 
cation of  his  authority  in  bar,  at  least  if  he  has  settled  his  ac- 
count; and  such  suit  must  be  further  prosecuted  in  the  name  of 
a  new  representative  of  the  estate,  or  be  dismissed.  Hence  a 
decree  for  the  sale  of  lands  to  pay  debts,  on  application  of  the 
decedent's  creditors,  is  void,  if  the  administrator's  resignation 
has  been  accepted  before  the  rendition  of  the  decree.  After 
revocation,  removal,  or  resignation,  the  former  executor  or 
administrator  cannot  complete  a  sale  wliich  he  has  been  nego- 
tiating on  behalf  of  the  estate,  nor  collect  assets;  but  the  court 
has  jm-isdiction  to  settle  his  accounts  as  though  he  were  still 
in  office. 


LAW   OF   DECEDENTS'  ESTATES.  223 


PART  III. 

OF  THE  PROPERTY  TO  WHICH  THE  TITLE  OP  EXECUTORS 
AND  ADMINISTRATORS  EXTENDS. 

There  is  no  occasion  to  repeat  citation  of  authorities  on  the 
proposition  that,  at  common  law  and  in  all  the  States,  all  mere 
personal  property,  including  chattels  real,  goes  to  the  executor 
of  a  testator,  and  to  the  administrator  of  an  intestate  or  of  a 
testator  in  case  no  executor  accepts  or  qualifies.  How  far  the 
widow  and  children  of  the  deceased  take  by  priority  of  title 
to  the  personal  representative  has  already  been  discussed. 


224  THE  LAW   OF  DECEDENTS'   ESTATES.        [§§  260,  261 


CHAPTER  XXX. 

OF  PROPERTY  IN   POSSESSION. 

§  260.  Heirlooms  not  Personalty.  —  By  special  custom  heir- 
looms go  to  the  heir  or  devisee,  and  although  they  are  mere 
chattels,  cannot  be  devised  apart  from  the  realty. 

Heirlooms  in  the  strict  sense  are  said  to  be  rare,  and  seem  not 
to  be  recognized  in  America;  they  are,  according  to  the  ancient 
authorities,  such  goods  and  chattels  as,  though  not  in  their 
nature  heritable,  have  a  heritable  character  impressed  upon 
them.  This  subject  is  not  of  sufficient  importance  in  this  coun- 
try to  justify  further  consideration  here. 

§  261.  Disposition  of  the  Corpse.  —  No  one  has  property  in 
its  strict  sense  in  the  corpse  of  the  deceased:  neither  personal 
representative,  survi\'ing  spouse,  nor  next  of  kin.  But  the 
personal  representative  has  title  to  the  burial  clothes  and  may 
sue  for  an}--  injury  thereto.  After  the  burial  the  surviving  spouse 
or  next  of  kin  has  a  legal  interest  in  the  grave  and  the  gravestone 
or  monument  which  coiu-ts  will  protect.  But,  though  there  is 
no  property  in  the  corpse,  the  courts  fully  recognize  the  duty 
of  disposing  of  the  body  in  a  decent  manner,  and  the  right  of  the 
proper  person  to  control  such  disposition.  The  right  of  an 
individual  to  make  a  valid  and  binding  disposition  of  his  own 
body  after  death  is  recognized,  which  the  probate  court  and 
representative  may  enforce  as  any  other  testamentary  pro- 
vision.^ In  the  absence  of  such  provision  and  of  a  claim  of  the 
burial  right  by  others,  the  duty  as  well  as  the  right  is  with  the 
personal  representative  of  the  deceased.  But  he  cannot  act 
as  against  either  sur\^ving  spouse  or  next  of  kin.  As  betv/een 
these  two  the  superior  right  of  the  next  of  kin  to  control  the 
sepulture  is  asserted  in  some  cases,  while  the  widow  is  given 
the  preference  in  others.  The  proper  expenses  incident  to 
burial  are  in  any  event  a  charge  against  the  estate. 

»  O'Donnell  v.  Slack,  123  Cal.  2S5. 


§§  262-264]  OF  PROPERTY   IN   POSSESSION.  225 

§  262.  Joint  Property.  —  It  is  one  of  the  characteristics  of 
joint  ownership  of  property,  personal  as  well  as  real,  that,  when 
one  of  the  joint  owners  dies,  his  interest  passes  at  once  to  the 
survivor  or  survivors,  excluding  the  personal  representatives 
as  well  as  heirs  and  distributees  from  any  title  therein.  But 
in  equity,  the  owners  of  a  mortgage  made  to  several  mortgagees 
jointly  w^ere  held  to  be  owTiers  in  common  of  the  money  secured 
thereby,  the  right  to  which,  on  the  death  of  one  of  them,  passes 
to  his  executor  or  administrator.  From  this  principle  the  rule 
is  deduced  that  at  law  the  right  of  a  joint  o^mer  passes,  on  his 
death,  to  the  sur\dvor  or  siu-\dvors,  but  in  equity  to  his  executor 
or  administrator. 

The  result  of  the  death  of  a  partner  on  the  joint  ownership, 
which  has  been  pre\dously  discussed,  furnishes  an  illustration 
of  this  principle. 

§  263.  Real  Estate.  —  The  general  rule  is  that  in  the  absence 
of  statutory  pro\dsions  the  real  estate,  or  lands,  tenements,  and 
hereditaments,  of  a  deceased  person,  go  directly  to  the  heirs  or 
devisees.  Exceptions  to  this  rule  are  enacted  in  many  States 
whose  statutes  direct  that  realty  and  personalty  are  alike  subject 
to  administration;  in  the  others  real  estate  is  likewise  subject 
to  be  administered  in  case  it  becomes  necessary,  from  the  lack 
of  sufficient  personalty,  to  pay  the  decedent's  debts,  so  that 
in  these  States  the  realty  descends  to  the  heu-  or  devisee  subject 
to  a  naked  power  to  be  sold  on  the  happening  of  the  contingency 
named.  It  is  also  to  be  mentioned  here  that  executors,  and 
under  some  circumstances  administrators  cum  testamento  an- 
nexo,  are  sometimes  vested  by  will  with  power  to  dispose  of 
real  estate.  In  this  respect  it  is  sometimes  difficult  to  decide 
whether  the  devise  is  to  the  executor,  or  to  the  devisee  with  a 
naked  power  in  the  executor.  The  question  is  to  be  determined 
by  ascertaining  from  an  examination  of  the  entire  vriW  of  the 
testator  what  his  intentions  were. 

§  264.  Chattels  Real,  which,  as  already  remarked,  go  to  the 
executor  or  administrator,  include  all  leases  of  lands  or  ten- 
ements for  a  definite  space  of  time,  measured  by  years,  months 
or  days,  or  until  a  day  named;  also  estates  at  will,  by  suffer- 
ance, and,  generally,  any  estate  in  lands  not  amounting  to  a 
freehold. 


226  THE   LAW  OF  DECEDENTS'   ESTATES.        [§§  265,  266 

By  statute  in  some  of  the  States  leases  exceeding  a  given  num- 
ber of  years,  or  certain  other  interests,  which  at  common  law 
would  be  personalty,  are  to  be  treated  as  real  estate  with  refer- 
ence to  the  rights  of  the  administrator. 

§  265.  Chattels  Real  of  the  Wife.  —It  is  familiar  doctrine  that 
at  common  law  the  wife's  interest  in  her  chattels  real  may  be 
.divested  by  the  husband  at  any  time  during  coverture.  But 
he  may  permit  them  to  remain  in  statu  quo,  and  if  in  such  case 
the  wife  survive,  they  are  hers  to  the  exclusion  of  his  executors 
and  administrators,  unaffected  by  testamentary  disposition  or 
charge.  The  disposition  by  the  husband,  in  order  to  divest 
his  wife's  interest  in  chattels  real,  must,  as  a  general  principle, 
be  such  as  to  effect  a  complete  change  of  the  interest  held  by 
husband  and  wife  jointly. 

If  the  husband  survive,  he  is  entitled  to  his  wife's  chattels  real 
not  disposed  of  by  him  during  coverture,  and  of  which  he  had 
possession  jure  uxoris;  not  as  her  executor  or  administrator, 
but  by  right  of  survivorship.  Hence,  if  he  should  himself  die 
without  having  administered  on  the  wife's  estate,  her  chattels 
real  go  to  his  executor  or  administrator.  The  foregoing  state- 
ment of  the  common  law  is  materially  altered  by  statute  in 
almost  all  States. 

§  266.  Mortgages,  as  well  as  deeds  of  trust  to  secure  the  pay- 
ment of  debts  to  the  decedent,  always  go  to  the  executor  or 
administrator,  even  though  the  estate  was  in  process  of  fore- 
closiue  at  the  time  of  the  testator's  death  and  although  the 
heirs  obtained  possession  before  the  appointment  of  an  ad- 
ministrator. So,  also,  the  real  estate  acquired  by  an  executor 
or  administrator  in  satisfaction  of  a  judgment  for  a  debt  due 
the  deceased  is  held  by  hun  in  trust  until  it  appears  that  it  is 
not  needed  to  pay  debts  or  expenses  of  administration,  when 
the  title  passes  to  the  heirs.  The  equity  of  redemption  in  the 
mortgagor  descends  to  his  heirs.  Hence  it  is  usually  held  that, 
while  the  surplus  proceeds  of  a  sale  during  the  lifetime  of  the 
mortgagor  constitute  personal  property  going  to  the  executor 
the  surplus  of  a  sale  after  his  death  represents  real  estate  and 
goes  to  the  heirs. 

But,  obviously  in  such  States  as  give  the  administrator  cus- 
tody of  the  real  as  well  as  of  the  personal  estate,  the  surplus 


§§  267-269]  OF  PROPERTY  IN  POSSESSION.  227 

arising  out  of  foreclosure  after  death  must  also  go  to  the  personal 
representative. 

The  vendor's  lien  for  unpaid  purchase  money,  being  a  chose 
in  action,  goes  to  the  executor  or  administrator,  and  not  to  the 
widow  or  heirs  as  such. 

§  267.  Chattels  Animate.  —  Domestic  animals,  being  personal 
property,  go  to  the  executor  or  administrator.  Of  animals 
fercB  natures  only  such  go  to  the  personal  representative  as  are 
confined,  or  in  the  immediate  possession  of  man ;  such  as  tame 
pigeons,  deer,  rabbits,  pheasants,  partridges,  etc.;  or  animals 
kept  in  a  room,  cage,  or  the  like;  fish  in  a  box,  tank,  or  net; 
doves  in  a  dove-house ;  or  animals  wounded  so  as  to  prevent  their 
escape,  or  killed;  or  oysters  artificially  planted  in  a  bed  clearly 
separated  and  marked  out  for  the  purpose.  But  animals  feres 
naturcB,  in  so  far  as  they  belong  to  a  pri\dlege  connected  with 
landed  possession,  such  as  deer  in  a  park  (not  so  tame  or  re- 
claimed from  their  wild  state  as  to  become  personal  property), 
fish  in  a  pond,  and  the  like,  will  go  to  the  heir,  if  the  deceased 
held  a  freehold  estate,  or  to  the  executor,  as  accessory  to  the 
chattel  real,  if  he  held  a  term  for  years. 

§  268.  Chattels  Vegetable.  —  Chattels  vegetable,  being  the 
fruit  or  other  parts  of  a  plant  when  severed  from  its  body,  or 
the  plant  itself  when  severed  from  the  ground,  go  to  the  executor 
or  administrator.  But  unless  they  have  been  severed,  trees 
and  the  fruit  and  produce  therefrom  follow  the  nature  of  the 
soil  upon  which  they  grow,  and  when  the  owner  of  the  land  dies 
they  descend  to  the  heir  or  person  entitled  to  the  land.  But 
even  growing  timber,  trees,  and  grass  may,  under  special  cir- 
cumstances, become  chattels,  and  as  such  pass  to  the  executor 
or  administrator;  where,  for  instance,  the  owner  of  the  fee 
grants  the  trees  on  land  to  another,  they  become  personalty. 
Or  the  owner  in  fee  simple  may  sell  the  land  and  reserve  the 
timber  or  trees,  and  they  thereby  become  personalty  and  go 
to  the  personal  representative. 

§  269.  Emblements,  as  against  the  heir,  belong  to  the  execu- 
tor or  administrator.  The  term  includes  everj^  product  of  the 
earth  yielding  an  annual  profit  as  the  result  of  labor  and  manur- 
ing; such  as  corn,  wheat,  grain,  hops,  saffron,  hemp,  flax,  melons, 
of  all  kinds,  and  the  like.    But  roots,  such  as  carrots,  parsnips. 


228  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  2G9 

turnips,  skerrets,  etc.,  are  said  to  belong  to  the  realty,  because 
it  is  not  right  that  the  executor  should  "dig  and  break  the  soil," 
except  potatoes,  which  are  held  to  come  within  the  description 
of  emblements.  The  reason  of  the  rule  is,  that  where  the  occu- 
pant of  land  has  sown  or  planted  the  soil  with  the  intention  of 
raising  a  crop,  and  his  estate  determines  without  his  fault  before 
harvest  time,  he  should  not  lose  the  fruit  of  his  labor;  to  accom- 
plish which  the  law  gives  to  him,  or,  if  the  tenancy  is  ended  by 
his  death,  to  his  executors  or  administrators,  the  profit  of  the 
crop.  Hence  the  right  is  confined  to  that  kind  of  crop  which 
actually  repays  the  labor  by  which  it  is  produced  within  the  year, 
excluding  fruit-growing  trees  and  growing  crops  of  grass,  clover, 
etc.,  though  sown  from  seed,  and  though  ready  to  be  cut  for 
hay.  While  the  executor  or  administrator  of  the  tenant  in  fee  is 
always  entitled  to  emblements  as  against  the  heir,  he  has  no 
such  claim  against  the  devisee  at  common  law,  although  this 
distinction  has  in  a  few  States  not  been  upheld.  That  the 
administrator  is  not  entitled  to  the  growing  crop  sown  and 
planted  after  the  intestate's  death  seems  a  self-e^^dent  propo- 
sition; but  whether  a  crop  so  sowm  goes  at  the  administrator's 
sale  of  the  land  for  the  payment  of  the  intestate's  debts  to  the 
purchaser,  is  another  question,  on  which  different  conclusions 
have  been  reached.^ 

So  it  is  self-evident,  that  where  a  widow  or  minor  children 
are  entitled  by  statutory  provision  to  the  product  of  the  home- 
stead and  messuages,  the  executor  or  administrator  is  excluded. 

In  America  the  subject  of  emblements  is  regulated  in  many 
States  by  statute.  In  most  of  them  it  is  pro\aded,  that  if  the 
owner  die  between  the  last  day  of  December  and  the  first  day 
of  ^Nlarch,  emblements  go  to  the  heir;  but  if  he  die  after  the  first 
day  of  March,  emblements  severed  before  the  last  day  of  De- 
cember following  are  assets  in  the  hands  of  the  executor  or 
administrator. 

The  widow  is  entitled  to  the  crop,  growing  on  the  land  assigned 
to  her  as  dower,  "she  being  then  in  de  optima  possessione  viri, 
above  the  executor."    So  if  she,  as  dowress,  sow  the  land  and 

^  That  the  purchaser  does  not  take  is  held  in  Barrett  v.  Choen,  119  Ind. 
56,  59.  That  he  does  take  is  held  in  Powell  v.  Rich,  41  111.  466,  469;  Foote 
V.  Overman,  22  lU.  App.  181,  184;  Page  v.  Culver,  55  Mo.  App.  606,  610. 


§  270]  OF  PROPERTY  IN  POSSESSION.  229 

marry,  the  crop  will  go  to  her  on  the  husband's  death  in  pref- 
erence to  his  executor  or  administrator;  but  if  she  marry,  and 
her  husband  sow  the  land  and  die,  the  crop  will  go  to  his  execu- 
tor; for  it  is  well  established  that,  upon  the  termination  of  a 
freehold  estate  held  by  the  husband  in  right  of  his  wife,  the 
emblements  will  go  to  the  husband  or  his  representatives. 

It  is  hardly  necessary  to  add,  that  where  the  law  gives  em- 
blements, it  also  gives  the  right  of  entry,  egress,  and  regress 
so  far  as  may  be  necessary  to  cut  and  remove  them. 

§  270,  Fixtures,  as  between  Heir  and  Personal  Representative.  — 
Fixtures  are  annexations  of  chattels  to  the  freehold  which  may, 
according  to  concomitant  circumstances,  assume  the  character 
of  either  real  or  personal  estate.  In  its  technical  sense  the  word 
signifies  such  things  only  of  a  personal  nature  as  have  been 
annexed  to  the  realty,  and  which  may  be  afterward  severed  or 
removed  by  the  party  who  united  them,  or  his  personal  rep- 
resentatives, against  the  will  of  the  o^vner  of  the  freehold;  but 
it  is  often  used  indiscriminately  in  reference  to  those  articles 
which  are  not  by  law  removable  when  once  attached  to  the  free- 
hold, as  well  as  those  which  are  severable  therefrom.  Questions 
concerning  fixtures  are  divided  by  text-^^Titers  into  such  as  arise 
between,  1st,  vendor  and  vendee,  including  mortgagor  and  mort- 
gagee; 2d,  heir  and  personal  representative;  3d,  landlord  and 
tenant ;  and  4th,  executor  of  tenant  for  life  and  reversioner  or  re- 
mainderman. The  subject  in  hand  demands  the  consideration 
chiefly  of  the  second  and  fourth  classes;  the  others  will  be  noticed 
only  in  so  far  as  they  furnish  principles  or  rules  applicable  to  all. 

In  determining  whether  such  personal  property  can  be  re- 
moved from  the  realty,  intention  is  the  controlling  test.  But 
for  determining  that  intention  there  are  several  subsidiary  tests 
and  presumptions.  As  these  approach  the  question  from  differ- 
ent standpoints,  having  little  logical  connection  with  one  an- 
other, there  is  apparent  conflict  in  concrete  decisions,  depending 
on  the  importance  attached  to  one  or  the  other  of  these  consid- 
erations, though  the  separate  principles  are  clear  enough. 
•  1.  The  test  of  physical  attachment  is  important.  If  a  per- 
sonal chattel  is  so  affixed  to  the  freehold  as  to  be  incapable  of 
being  detached  therefrom  without  violence  and  injury  to  the 
freehold,  it  goes  with  the  real  estate.    But  the  chattel  can  be- 


230  THE  L\W   OF  DECEDENTS'  ESTATES.  [§  270 

come  realty  without  physical  fastening  to  land,  as  for  instance 
a  huge  statue  in  the  open  air,  kept  in  place  by  gravity  solely. 
Pictures,  mirrors,  etc.,  taking  the  place  of  wainscoting  belong 
to  the  realty;  for  "the  house  ought  not  to  come  to  the  heir 
maimed  or  disfigured." 

2.  But  personalty  passes  with  the  realty  without  permanent 
physical  attaclmient  when  there  is  constructive  attachment: 
that  is,  when  the  portable  chattel  is  specially  adapted  to  the 
use  of  the  realty  in  question.  That  keys,  doors,  windows,  bolts, 
rings,  etc.,  belonging  to  a  house,  though  temporarily  detached 
therefrom,  belong  to  the  realty,  is  self-evident. 

3.  On  old  and  well-established  rules  the  courts  have  declared 
trade  fixtures  personalty,  though  affixed  to  the  soil  in  a  manner 
that  would  make  them  realty  under  other  tests.  The  doctrine 
was  later  applied  to  agricultural  fixtures,  and  finally  to  fixtures 
for  domestic  use  and  convenience. 

4.  Another  consideration  is  the  adaptability  of  the  article 
in  question  to  the  uses  to  which  the  realty  is  put.  Manure 
from  the  barn-yard  of  a  homestead,  although  neither  rotten 
nor  incorporated  with  the  ground,  but  in  a  pile  for  future  use, 
belongs  to  the  realty;  but  manure  made  in  a  livery  stable,  or 
in  any  manner  not  connected  with  agriculture  or  husbandry, 
is  personalty,  and  goes  to  the  executor.  A  fence  enclosing  a 
field,  of  whatever  material  or  construction,  whether  having 
posts  inserted  in  the  ground  or  not,  is  part  of  the  freehold; 
nor  does  it  cease  to  be  so,  though  accidentally  or  temporarily 
detached  therefrom  without  intent  on  the  part  of  the  owner  to 
divert  it  permanently  from  its  use;  but  rails  in  stacks,  not 
having  been  used  for  a  fence,  are  personalty.  On  the  same  prin- 
ciple, hop-poles,  necessary  in  cultivating  hops,  are  part  of  the 
real  estate,  though  taken  down  for  the  purpose  of  gathering 
the  crop,  and  piled  in  the  yard  with  the  intention  of  being  re-> 
placed  in  the  season  of  hop-raising.  The  second  proposition 
above,  though  historically  independent,  is  logically  an  applica- 
tion of  this  rule. 

5.  Again,  since  intent  is  the  governing  test,  the  interest  which 
the  owner  of  the  chattel  has  in  the  realty  must  be  an  important 
element  in  determining  whether  or  not  it  was  contemplated 
that  the  chattel  should  become  a  permanent  part  of  the  realty. 


§§271,  272]  OF  PROPERTY  IN  POSSESSION.  231 

The  maxim,  Quicquid  plantatur  solo  solo  cedit,  is  said  to  apply 
with  most  rigor  in  favor  of  the  inlieritance,  and  against  the 
right  of  the  personal  representative  to  disannex  therefrom  and 
consider  as  a  personal  chattel  anything  which  has  been  affixed 
thereto.  Anciently  there  seems  to  have  been  no  exception  be- 
tween the  executor  and  heir  of  the  tenant  in  fee  to  the  rule  that 
whatever  was  affixed  to  the  freehold  descends  to  the  heir,  but 
modern  cases,  while  still  attributing  great  force  to  this  consid- 
eration, do  not  refuse  to  weigh  the  other  elements  of  the  case 
from  which  the  controlling  intention  is  to  be  found. 

On  this  same  principle  there  is,  as  between  landlord  and  tenant 
for  years,  a  leaning  toward  permitting  the  tenant  to  remove 
the  chattel  as  personalty.^ 

§  271.  Fixtxires  as  between  Devisee  and  Personal  Representative. 
—  As  between  devisee  and  executor,  the  rule  is  that  a  devisee 
shall  take  the  land  in  the  same  condition  as  it  would  have  de- 
scended to  the  heir;  hence  he  is  entitled  to  all  the  articles  affixed 
to  the  land,  whether  annexed  before  or  subsequent  to  the 
date  of  the  devise.  The  executor  is  therefore  entitled  to  all  the 
fixtures  as  against  the  devisee,  that  he  would  be  entitled  to  as 
against  the  heir.  But  there  seems  to  be  no  doubt  that  if,  from 
the  nature  and  condition  of  the  property  devised,  it  is  apparent 
that  the  testator  intended  the  fixtures  to  go  with  the  freehold 
to  the  devisee,  they  will  pass  to  him,  although  of  a  character 
which  would  go  to  the  executor  as  against  the  heir. 

§  272.  Fixtures  as  between  Personal  Representative  of  Life  Ten- 
ant and  Remainderman.  —  Since  the  heir  is  more  favored  in 
law  than  the  remainderman  or  reversioner,  in  this  respect,  or 
rather,  since  the  law  is  more  indulgent  to  the  executor  of  the 
particular  tenant  than  to  the  executor  of  the  tenant  in  fee,  it 
follows  that  all  the  authorities  which  establish  the  executor's 
right  to  fixtures  as  against  the  heir  will  apply  a  fortiori  against 
the  remainderman  or  reversioner.  As  between  landlord  and 
tenant,  there  is  great  deviation  from  the  rule,  that  what  has 
been  once  annexed  to  the  freehold  becomes  a  part  of  it,  and  it 
would  be  erroneous  to  conclude  that,  because  a  fixture  set  up 
for  ornament  or  domestic  convenience  has  been  decided  to  be 

1  Numerous  authorities  on  the  subject  of  this  section  are  collated  in 
Woemer  on  Administration,  §§  2S3  and  2S4. 


232  THE   L.\W   OF  DECEDENTS'   ESTATES.         [§§  273,  274 

removable  as  between  landlord  and  tenant,  therefore  such  fixture 
may  be  claimed  as  personalty  by  the  executor  of  a  tenant  for 
life,  etc.;  still,  there  is  much  similarity  between  the  two  classes, 
and  although  the  case  of  a  tenant  for  life  is  not  quite  so  strong 
as  that  of  a  common  tenant,  yet  the  reasoning  is  closely  analo- 
gous between  them.  It  is  obvious  that  the  executor  and  admin- 
istrator of  a  tenant  take  the  same  property  in  fixtures,  as  against 
the  owner  of  the  fee,  or  the  reversioner,  as  the  testator  or  intes- 
tate had  therein;  and  that  the  legal  right  of  a  tenant  to  remove 
fixtures  may  be  governed  by  express  stipulation,  usually  inserted 
in  a  lease  for  this  purpose. 

§  273.  Separate  Property  of  the  Wife.  —  The  law  in  regard  to 
the  separate  property  of  married  women  has  of  late  undergone 
great  changes,  both  in  England  and  America;  there  has  been 
and  still  is  a  strong  tendency  in  both  countries  to  supersede 
the  common-law  rules  on  this  subject  by  the  principles  of  the 
civil  law,  and  to  accord  to  married  women  as  a  legal  right  what 
formerly  they  could  enjoy  only  under  the  a?gis  of  a  court  of 
equity.  It  is  necessary,  therefore,  to  remember,  that  in  all 
cases  where  by  statutory  provision  property  of  a  married  woman 
is  secured  to  her  against  the  power  or  control  of  the  husband,  it 
will  survive  to  her  after  his  death,  and  the  husband's  executor 
or  administrator  has  no  title  thereto;  and  if  the  husband  sur- 
vive the  wife,  such  property  will  go  to  her  executor  or  admin- 
istrator, and  the  husband  has  no  interest  therein  unless  he  ad- 
minister on  her  estate,  or  take  the  property  by  virtue  of  some 
statutory  provision.  But  at  common  law  the  husband  is  en- 
titled to  and  becomes  the  owner  of  all  chattels  which  the  wife 
owned  before  marriage,  or  which  come  to  her  during  the  exist- 
ence of  the  marriage,  whether  she  survives  him  or  not ;  and  con- 
sequently, though  she  survive  him,  they  will  go  to  his  executor 
if  he  makes  a  will,  or  to  his  administrator  if  he  dies  intestate. 
But  if  property  be  conveyed  or  bequeathed  to  or  settled  upon 
her,  through  the  intervention  of  trustees,  or  even  without,  for 
her  separate  use,  it  will  not,  upon  his  death,  become  a  part  of 
the  beneficial  estate  of  his  executors  or  administrators. 

§  274.  Ante-Nuptial  Settlements.  —  Ante-nuptial  settlements 
of  money,  jewels,  furniture,  or  other  movables,  by  the  husband 
upon  the  wife,  are  valid  against  the  husband  and  all  claiming 


§§  275,  276]  OF  PROPERTY  IN  POSSESSION.  233 

under  him,  as  well  as  his  creditors.  The  title  of  the  wife  is  good, 
even  against  creditors,  and  a  fortiori  against  the  executor  or 
administrator,  although  the  settlor  contemplated  defrauding 
his  creditors,  if  the  future  wife  had  no  notice  and  did  not  par- 
ticipate in  the  intent.  She  stands  as  a  purchaser,  the  marriage 
being  a  valuable  consideration.  So  an  agreement  before  mar- 
riage, in  writing,  that  the  wife  shall  be  entitled  to  specific  parts 
of  her  personal  estate  to  her  specific  use,  will  be  enforced  in 
equity,  although  the  legal  title  be  vested  in  the  husband  by  the 
subsequent  marriage;  the  husband  in  such  case  becomes  trustee 
for  his  wife's  separate  use,  and  the  trust  will  bind  his  executors 
and  administrators. 

§  275.  Post-Nuptial  Settlements.  —  Post-nuptial  settlements, 
as  well  as  gifts  by  the  husband  to  the  wife  during  coverture, 
are  valid  against  himself  and  all  who  claim  as  volunteers  under 
or  through  him,  and  even  against  creditors,  unless  fraudulent 
as  to  them  or  not  made  for  valuable  consideration.  Where  the 
settlement  after  marriage  is  made  for  a  valuable  consideration, 
the  presumption  of  fraud  fails,  though  the  husband  be  indebted 
at  the  time.  A  contract  in  consideration  of  the  settlement  of 
existing  differences,  and  the  avoidance  of  future  difficulties  and 
dissensions,  or  of  the  return  of  a  wife  who  is  legally  justified 
in  her  absence  from  the  husband,  is  founded  on  a  valid  consid- 
eration. In  the  case  of  Lloyd  v.  Fulton,^  Mr.  Justice  Swayne, 
delivering  the  opinion  of  the  Supreme  Coiu-t  of  the  United 
States,  lays  down  this  rule  upon  the  subject  of  post-nuptial 
marriage  settlements :  "  Prior  indebtedness  is  only  presumptive, 
and  not  conclusive  proof  of  fraud,  and  this  presumption  may 
be  explained  and  rebutted.  Fraud  is  always  a  question  of  fact 
with  reference  to  the  intention  of  the  grantor.  Where  there  is 
no  fraud  there  is  no  infirmity  in  the  deed.  Every  case  depends 
upon  its  circumstances,  and  is  to  be  carefully  scrutinized.  But 
the  vital  question  is  always  the  good  faith  of  the  transaction. 
There  is  no  other  test." 

§  276.   The  Wife's  Savings  from  Separate  Trade,  Pin-Money,  Gifts, 

etc.  —  A  wife  may  also  acquire  separate  property  by  carrying  on 

a  business  or  trade  on  her  own  account,  by  permission  of  the 

husband,  either  in  consequence  of  an  express  agreement  between 

1  91  U.  S.  479,  485. 


234  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  277 

her  ■and  her  husband  before  the  marriage,  in  which  case  it  will 
be  binding  also  against  creditors,  or  where  he  consents  during 
the  marriage,  in  which  case  it  will  be  void  against  creditors, 
but  binding  on  him  and  his  personal  representatives.  And  the 
savings  of  the  wife  arising  from  her  separate  property,  gifts 
from  the  husband  to  the  wife,  pin-money,  and  similar  allow- 
ances to  her,  or  jewels  or  other  things  purchased  by  her  out  of 
her  separate  estate,  belong  to  her,  and  do  not  constitute  assets 
in  the  hands  of  the  husband's  executor  or  administrator. 

But  in  the  United  States  there  is  little  or  no  occasion  for  the  ap- 
plication of  any  rules  concerning  pin-money;  this  subject, as  well 
as  that  of  paraphernalia,  is  generally  merged  in,  and  governed  by, 
the  statutory  provisions  for  the  protection  of  married  women 
and  the  support  of  the  family  upon  the  death  of  the  husband. 

§  277.  The  Wife's  Paraphernalia.  —  Paraphernalia  of  the  wife 
include  her  wearing  apparel  and  ornaments,  suitable  to  her 
station  in  life.  It  is  held  in  England  that  what  constitutes  par- 
aphernalia is  a  question  to  be  decided  by  the  court,  depending 
upon  the  rank  and  fortune  of  the  parties;  and  the  books  are  full 
of  cases  distinguishing  between  the  nature  and  value  of  the 
jewels,  ornaments,  and  garments  as  constituting,  or  not,  the 
wife's  paraphernalia.  In  America,  as  with  regard  to  the  analo- 
gous subjects  of  pin-money  and  other  allowances  by  the  hus- 
band, the  statutes  of  most  States  contain  specific,  and  in  some 
cases  very  minute,  provisions  on  the  rights  of  the  wife  and 
widow  to  her  paraphernalia,  which  are  considered,  in  their  con- 
nection with  the  estates  of  deceased  persons,  in  a  separate 
chapter.  At  common  law,  gifts  as  paraphernalia  are  distinguish- 
able from  gifts  by  the  husband  for  the  wife's  separate  use  in 
this,  that  she  may  dispose  of  the  latter  absolutely,  but  can 
neither  give  away  nor  bequeath  the  former  by  her  will;  and  that 
the  husband  may  sell  or  give  them  away  during  his  lifetime, 
but  cannot  during  her  life  dispose  of  them  by  will.  So  they 
are  liable,  at  common  law,  and  in  States  in  which  they  are  not 
secured  to  the  wife  by  statutory  enactment,  for  the  husband's 
debts,  but  not  to  satisfy  the  husband's  legacies.  Nor  are  jewels 
and  other  gifts  in  the  nature  of  paraphernalia  by  third  persons, 
jor  her  separate  use,  Hable  for  the  husband's  debts. 


§§  278,  279]  TITLE  TO   CHOSES.  -  235 


CHAPTER  XXXI. 

TITLE  OF  EXECUTORS  AND  ADMINISTRATORS  TO  CHOSES  IN 

ACTION. 

§  278.  Survival  of  Actions  at  Common  Law.  —  The  ancient 
rule  of  the  common  law,  Actio  personalis  moritur  cum  persona, 
left  only  such  actions  to  be  brought  by  the  executor  or  admin- 
istrator as  were  founded  on  some  obligation  or  duty,  including 
debts  of  all  descriptions,  with  respect  to  which  the  executor  or 
administrator  is  the  only  representative  of  the  deceased  recog- 
nized by  law,  so  that  no  provision  in  a  contract,  nor  any  stip- 
ulation or  agreement,  can  transfer  to  another  his  exclusive  rights 
derived  from  such  representation.  Actions  for  injuries  to  the 
person  or  property  of  another,  for  which  damages  only  could  be 
recovered  (tort,  malfeasance,  misfeasance),  or  arising  ex  delicto 
(trespass  de  bonis  asportatis,  trover,  false  imprisonment,  assault, 
battery,  slander,  deceit,  diverting  a  watercourse,  obstructing 
lights,  escape,  etc.),  in  which  the  declaration  at  common  law 
imputes  tort  to  person  or  property,  and  the  plea  is  not  guilty, 
are  said  to  die  with  the  person  by  or  to  whom  the  wrong  was 
done.  This  rule  was  modified  by  a  series  of  English  statutes, 
notably  that  of  4  Edw.  III.  c.  7,  giving  an  action  in  favor  of  a 
personal  representative  for  injuries  to  personal  property,  and 
3  &  4  Wm.  IV.  c.  42,  §  3,  giving  an  action  in  favor  of  personal 
representatives  for  injuries  to  real  estate,  and  against  personal 
representatives  for  injuries  to  real  or  personal  estate;  so  that 
actions  are  now  maintainable  by  and  against  executors  and  ad- 
ministrators in  all  cases  where  the  value  of  personal  property 
has  been  reduced  by  injury  thereto,  whatever  form  of  action 
may  be  necessary  to  secure  the  remedy,  and  for  injury  to  the 
real  estate,  and  the  damages  recovered  declared  to  be  personal 
estate. 

§  279.  Reason  of  the  Rule.  —  The  accurate  and  logical  im- 
port of  the  rule  that  actio  personalis  moritur  cum  persona, 


236  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  279 

seems  to  be,  that  for  injuries  to  the  person  alone,  not  affecting 
property  of  any  kind,  the  remedy  ceases  upon  the  death  of  tlie 
doer  or  sufferer.  Legislative  enactments,  both  in  England  and, 
with  few  if  any  exceptions,  in  America,  spring  from  a  recogni- 
tion of  the  maxim  in  this  sense,  and  the  judiciary  in  both  coun- 
tries, when  not  controlled  by  statutory  enactment  to  the  con- 
trary, is  guided  by  it  in  its  rulings.  The  law  exacts  reparation 
from  the  wrongdoer,  whether  the  wrong  affects  the  person  or 
the  property  of  another;  it  makes  compensation  by  a  judgment 
in  favor  of  the  person  aggrieved  against  the  aggressor,  in  a 
sum  of  money  deemed  to  be  the  equivalent  of  the  injury  suffered. 
But,  under  the  artificial  common-law  system  respecting  the 
devolution  of  property  upon  the  owner's  death,  there  can  be 
no  reparation  for  a  wrong  done  (the  remedy  for  which  is  an 
action  ex  delicto)  where  one  of  the  parties  is  dead;  "for,"  says 
Blackstone,  "neither  the  executors  of  the  plaintiff  have  re- 
ceived, nor  those  of  the  defendant  have  committed,  in  their 
own  personal  capacity,  any  manner  of  wrong  or  injury."  Ac- 
tions arising  ex  contractu  were  allowed  to  survive  both  to  and 
against  executors  and  administrators,  "being  indeed  rather 
actions  against  the  property  than  the  person,  in  which  the  ex- 
ecutors have  now  the  same  interest  that  their  testator  had 
before."  ^  In  this  view  no  action  lies  against  or  by  an  executor 
or  administrator  for  a  tort  committed  to  one's  person,  feelings, 
or  reputation. 

But  an  injury  to  property  involves  a  wrong  to  others  beside 
the  immediate  sufferer,  that  is  to  say,  to  all  who  have,  from 
their  relation  to  the  owner,  an  interest  in  the  property;  and 
these,  whether  personal  representatives,  heirs,  or  devisees,  are 
entitled  to  and  have  their  remedy.  Thus,  as  heretofore  men- 
tioned, personal  actions  survive  in  all  cases  arising  ex  contractu, 
and  by  English  statutes  this  is  extended  to  actions  for  injury 
to  personal  or  real  estate. 

No  action  for  a  wrong  done  by  the  deceased  against  the  per- 
sonal representative  lies  unless  the  estate  in  his  hands  was  ben- 
efited by  the  tort;  in  which  case  the  tort  can  be  waived  and  ac- 
tion brought  in  assumpsit.  This  is  well  illustrated  by  two  cases 
of  wrongful  collection  of  taxes  by  an  internal  revenue  collector, 
1  3  Blackstone  302. 


§§  280, 281]  TITLE  TO   CHOSES.  237 

who  died  pending  the  suits.  In  Patton  v.  Brady, ^  the  court 
held  the  personal  representative  liable  on  assumpsit;  but  in 
Bank  v.  Brady, ^  the  claim  was  below  the  jurisdiction  of  the 
court  in  assumpsit,  and  viewed  as  a  suit  sounding  in  tort  it 
was  held  not  to  survive. 

§  280.  American  Statutes  regulating  the  Survival  of  Actions.  — 
The  tendency  of  legislation  in  America,  wherever  it  diverges 
from  the  common-law  rule  above  mentioned,  is  uniformly  in 
the  direction  of  increasing  the  liability  of  tortfeasors  and  their 
estates,  and  correspondingly  augmenting  the  authority  of 
executors  and  administrators  to  maintain  action  for  injuries 
to  the  person  or  property  of  their  deceased  testators  or  intestates. 

These  laws  vary  greatly.  Georgia,  for  instance,  declares 
that  no  action  abates  by  reason  of  the  death  of  either  party  to 
a  pending  suit,  leaving  the  right  of  the  personal  representative 
to  institute  suit  as  at  common  law;  while  the  Missouri  statute 
allows  all  causes  of  action  to  survive,  except  slander,  libel, 
assault  and  battery,  false  imprisonment,  or  actions  on  the  case 
for  injuries  to  the  person.  In  every  State  it  is  not  only  a  ques- 
tion of  the  statute,  but  of  the  interpretation  given  it  by  the 
courts  of  the  State.^ 

§  281.  Actions  for  Injury  to  Personalty.  —  It  results  from  the 
preceding  sections,  and  from  the  general  rule  that  personal 
property  descends  to  executors  and  administrators,  that  they 
alone  can  sue  and  be  sued  upon  all  personal  contracts.  The 
same  principle  extends  to  the  recovery  of  specific  personal 
property  belonging  to  the  decedent,  upon  whose  death  the  legal 
title  vests  at  once  in  the  personal  representative;  and  to  the  re- 
covery of  its  value  if  it  has  been  converted,  or  of  damages  for 
injury  thereto.  This  has  been  held  to  include  actions  in  trover, 
replevin,  trespass,  case,  debt  for  conversion,  and,  a  fortiori,  for 
a  conversion  after  the  intestate's  death,  though  before  the  ap- 
pointment of  the  administrator.  So,  also,  an  action  against  a 
sheriff  for  a  false  return,  and  an  action  by  a  husband  against  a 
carrier  for  the  loss  of  his  wife's  services  and  expenses  paid  in 

1  Patton  V.  Brady,  184  U.  S.  608. 

2  Bank- of  Iron  Gate  v.  Brady,  184  U.  S.  665. 

*  Classification  of  such  statutory  provisions  is  given  in  Woemer  on 
Administration,  §  292. 


238  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  2S2 

consequence  of  injuries  received  by  her  through  the  carrier's 
negligence ;  but  all  right  of  action  for  the  loss  of  her  society  and 
its  comfort  to  him  dies  with  him. 

§  282.  Actions  concerning  Realty.  —  Any  contractual  right  ac- 
cruing to  the  owner  of  the  freehold  goes  to  the  personal  repre- 
sentative. It  is  he,  not  the  heir,  who  recovers  rents  accrued 
during  the  landlord's  life.  So  the  administrator  sues  on  a 
bond  for  the  payment  of  such  rent.  For  injuries  done  the 
freehold  during  the  owner's  life,  the  personal  representative 
sues,  wherever  the  statute  lets  such  tort  actions  survive,  as  is 
almost  everywhere  the  case.  The  administrator  can  maintain 
replevin  for  trees  wrongfully  cut  from  the  testator's  land  during 
his  lifetime,  and  recover  damages  for  injury  to  the  rental  value 
or  for  trespass  committed  upon  the  land  before  the  death  of  the 
owner. 

As  to  covenants  of  title  the  question  is  when  they  are  broken. 
If  broken  during  the  owner's  lifetime,  the  cause  of  action  is  in 
the  personal  representative,  not  in  the  heir  or  other  successor 
to  the  title  to  the  realty.  As  to  covenants  which  run  with  the 
land,  such  as  warranty  and  the  covenant  for  quiet  enjoyment, 
the  cause  of  action  is  in  the  owner  at  the  time  of  the  breach, 
not  in  the  personal  representative  of  the  covenantee.  But  as 
to  covenants  not  running  with  the  land,  such  as  the  covenants  of 
seizin  and  of  good  right  to  convey,  which  are  said  to  be  broken, 
if  at  all,  as  soon  as  made,  the  cause  of  action  was  complete  in 
the  covenantee,  and  therefore  passes  to  the  personal  represent- 
ative, even  though  the  assertion  of  the  adverse  title  —  the 
discovery  of  the  fact  that  there  was  a  breach  —  occurs  after 
the  death  of  the  covenantee.  But  in  an  increasing  number  of 
States  the  courts,  conceding  that  there  is  a  technical  breach 
of  such  covenants  as  soon  as  made,  nevertheless  hold  that  these 
covenants  run  with  the  land  until  the  assertion  of  the  outstand- 
ing title;  and  accordingly  vest  the  cause  of  action  in  the  holder 
of  the  covenantee's  title  at  the  time  of  such  actual,  substantial 
breach. 

Where  the  estate  of  the  deceased  in  the  land  was  not  a  free- 
hold, so  that  it  descends  as  a  chattel,  the  executor  or  adminis- 
trator may  self-evidently  bring  action  of  forcible  entry  and 
detainer  for  an  entry,  or  sue  for  a  trespass  committed  thereon, 


§§283,284]  TITLE  TO  CHOSES.  239 

either  before  or  after  the  decedent's  death,  or  sell  or  otherwise 
dispose  of  the  right.  And  while  it  is  clear  that,  for  any  injury 
to  lands  descending  to  heirs  or  devisees  after  the  ancestor's  or 
testator's  death,  the  heirs  or  devisees  alone  can  sue,  and  that 
the  executor  or  administrator  can  bring  no  possessory  action 
in  such  case;  yet  where,  under  the  statute  or  a  testamentary 
provision,  the  executor  or  administrator  is  put  in  charge  of  the 
real  as  well  as  of  the  personal  estate,  any  action  necessary  to 
protect  the  same  against  wrongdoers,  or  to  recover  damages 
for  injuries  thereto,  including  ejectment  for  possession,  must 
lie  in  favor  of  such  executor  or  administrator.  So  the  action  of 
ejectment  is  given  where  land  becomes  assets  for  the  want  of 
sufficient  personalty  to  pay  debts,  or  under  license  from  the 
probate  court.  And  on  the  same  principle  an  action  on  street 
assessment  is  maintainable  against  the  executor  or  adminis- 
trator, if  he  is  in  charge  of  the  property  assessed. 

§  283.  Actions  for  Injuries  to  the  Person.  —  All  claims  for  in- 
jiu-y  to  the  person  are  lost  at  common  law  when  either  the  in- 
jured party  or  the  offender  dies.  But  no  State  has  failed  to 
modify  this  rule  by  statute.  Any  given  case  presents  a  local 
question  depending  on  the  statute  and  its  interpretation.  Thus 
rulings,  always  resting  on  statute,  can  be  found  keeping  the 
cause  of  action  alive  after  death  of  plaintiff  or  defendant  when 
the  injury  arose  from  a  defect  in  a  highway,  a  carrier's  negli- 
gence, assault  and  battery,  malicious  prosecution,  libel,  slander, 
seduction,  malpractice  of  a  physician.  And  in  each  of  these 
cases  decisions  to  the  contrary  may  be  found  under  the  statutes 
of  other  States.  For  these  and  other  instances  the  statutes  of 
the  respective  States  must  be  consulted.^ 

§  284.  Actions  for  Injuries  resulting  in  Death  do  not  lie  at  Com- 
mon Law.  —  But  in  England  and  most  of  the  American  States 
actions  are  authorized  by  statute  for  the  wrongful  act,  neglect, 
or  default  of  any  person  or  corporation  resulting  in  the  death 
of  the  person  injured. 

The  action  is  in  nearly  all  of  these  States  intended  for  the 

benejfit  of  the  widow;  in  most  of  them  for  the  benefit  of  the 

widow,  children,  or  next  of  kin,  or  for  the  widow  and  next  of 

kin;  in  some,  for  the  husband,  widow,  and  heirs;  in  others,  if 

1  Authorities  are  collected  in  Woemer  on  Administration,  §  294. 


240  THE   LAW   OF  DECEDENTS'   ESTATES.  [§284 

there  be  no  widow,  to  children,  or  half  to  the  widow  and  half 
to  the  children,  or  to  be  distributed  among  wife,  husband, 
parent,  and  child.  In  some  of  the  States  the  action  may  be 
brought  by  the  widow,  husband,  parent,  or  other  person  en- 
titled to  the  proceeds;  but  generally  the  suit  is  brought  by  the 
personal  representative  for  the  benefit  of  the  persons  named  in 
the  statute,  not  as  representing  the  estate  in  such  cases,  but 
the  persons  for  whose  benefit  the  remedy  is  given.  Hence  the 
amount  recovered  is  not  assets  in  the  hands  of  the  executor  or 
administrator;  if  the  persons  for  whose  benefit  the  action  is 
authorized  are  not  in  existence,  the  statutes  of  a  few  States 
provide  that  the  amount  recovered  shall  be  assets;  but  in 
most  others  it  is  held  that  in-  such  case  the  action  does  not 
lie. 

In  nearly  all  the  States  where  the  question  has  arisen  the 
benefit  of  these  statutes  is  not  withheld  because  of  the  fact 
that  the  beneficiaries  are  non-resident  aliens. 

In  some  of  the  States  it  is  held  that  the  husband  has  no  action 
for  the  killing  of  his  wife.  In  several  States  the  statute  is  con- 
strued as  abating  the  action  by  the  death  of  the  defendant; 
and  there  it  is  held  that  no  action  survives  against  the  repre- 
sentatives of  the  wrong-doer.  If  the  suit  is  brought  by  the 
beneficiary  it  is  vested,  and  will  survive  his  death.^ 

Attention  may  be  called  to  the  distinction  between  statutes 
giving  a  cause  of  action  to  the  representative  for  injuries  suf- 
fered by  his  intestate  or  testator  during  his  lifetime,  and  such 
as  give  an  action  founded  on  his  death,  or  on  the  damages 
resulting  from  his  death  to  the  widow,  next  of  kin,  or  other 
person  in  whose  favor  the  action  is  given. 

In  the  former  case  the  statute  is  %'iewed  as  abolishing  the 
common-lav/  rule  as  to  abatement  of  claims  for  injuries  by 
death  of  the  claimant,  and  as  making  the  original  cause  of 
action  survive  for  the  benefit  of  parties  designated  by  the 
statute;  while  on  the  other  theory  the  statute  creates  a  cause 
of  action  without  reference  to  the  cause  of  action  the  injure! 
party  might  have  had  before  his  death.  The  measure  of  dam- 
ages is  furnished  in  the  former  case  by  the  loss  and  suffering  of 
the  deceased  party  caused  by  the  injury  up  to  the  time  of  his 
1  Strode  v.  St.  Louis  Transit  Co.,  197  Mo.  616. 


§§285,286]  TITLE  TO  CHOSES.  241 

death;  while  in  the  latter  case  death  is  the  cause  of  action,  and 
the  damages  are  measured  by  the  loss  to  the  person  in  whose 
interest  the  action  is  brought  in  consequence  of  such  death. 
Where  the  injured  party  settles  or  recovers  for  his  injuries  in 
his  lifetime,  it  is  clear,  at  least  in  those  States  which  hold  the 
statute  as  abolishing  the  common-law  rule  as  to  abatement, 
that  the  personal  representative  has  no  right  to  sue  after  death 
of  the  injured  person.  So  too  where  the  theory  is  that  the  stat- 
ute transfers  the  right  of  the  injured  party  it  has  been  held 
that  no  action  lies  for  an  instantaneous  killing. 

§  285.  Suit  for  Death  Loss  under  Law  of  Other  State.  —  The 
extra-territorial  enforcement  of  these  statutes  gives  rise  to 
divergent  rulings.  Where  the  statute  of  the  State  of  the  in- 
jury on  which  the  action  must  be  based  is  viewed  in  the  forum 
as  penal,  or  as  against  the  policy  of  the  forum,  it  will  not  be 
enforced. 

Only  the  action  given  by  the  statute  of  the  place  of  injury 
can  be  enforced.  If  that  law  gives  the  action  to  the  widow, 
she  only  can  sue,  and  not  an  administrator.  The  converse  is 
also  true.  But  if  the  statute  gives  the  action  to  the  adminis- 
trator, it  is  generally  held  that  an  administrator  appointed  in 
the  forum  can  sue. 

A  further  examination  of  this  question  of  conflict  of  laws  seems 
beyond  the  scope  of  this  work. 

§  286.  Property  conveyed  by  Decedent  in  Fraud  of  Creditors.  — 
At  common  law  and  under  English  statutes  the  transfer  of  prop- 
erty in  fraud  of  the  rights  of  creditors  is  void  as  to  them,  but 
good  and  binding  between  the  parties  thereto.  The  same 
principle  is  embodied  in  the  American  statutes,  from  which  it 
follows  that,  as  the  representative  of  a  decedent,  the  executor 
or  administrator  cannot  impeach  the  conveyance  of  his  testator 
or  intestate  on  the  ground  of  fraud.  But  the  personal  represent- 
ative is  also  the  representative  of  the  creditors;  hence,  although 
he  is  never  allowed  to  recover  the  property  from  the  fraudulent 
grantee  for  the  benefit  of  the  heir  or  devisee,  because  they  are 
equally  bound  with  the  grantor,  yet  he  may  consistently  do 
so  in  favor  of  creditors  of  an  insolvent  estate.  Provision  is 
therefore  made  by  statute,  in  some  of  the  States,  enabling  ex- 
ecutors and  administrators  of  insolvent  estates  to  recover  prop- 


242  THE  LAW  OF  DECEDENTS'   ESTATES.  [§  287 

erty  fraudulently  conveyed  by  their  testators  or  intestates, 
and  the  property  so  recovered  becomes  assets  for  the  payment 
of  debts;  and  in  some  States  it  is  so  held  in  the  absence  of  a 
statute  to  that  effect.  In  most  of  these  States,  when  the  ad- 
ministrator refuses  to  bring  such  action,  and  the  estate  proves 
insufficient  to  pay  the  debts,  creditors  may  bring  suit  them- 
selves, making  the  representative  a  party  defendant,  or  object 
to  the  settlement  of  an  estate  as  insolvent,  alleging  the  existence 
of  property  fraudulently  conveyed;  while  in  others  it  is  held 
that  a  creditor  cannot  maintain  the  bill;  if  the  administrator 
refuses  to  do  so,  after  an  offer  of  proper  indemnity,  he  should 
be  removed  and  another  appointed. 

In  other  States  the  creditor  is  driven  for  his  remedy  to  a 
court  of  chancery,  because  the  executor  or  administrator  is 
not  permitted  to  assail  or  impeach  the  acts  of  his  testator  or 
intestate.^ 

As  in  other  cases,  there  must  be  an  exliaustion  of  the  person- 
alty before  real  estate  fraudulently  conveyed  can  be  sold  to 
pay  the  fraudulent  grantor's  debts,  and  the  proceeds  of  such 
sale,  whether  on  suit  by  a  creditor  or  by  the  executor  or  admin- 
istrator, become  assets  for  the  payment  of  debts  only.  In  an 
early  case  the  excess  over  the  amount  necessary  to  pay  the 
debts  was  held  to  be  distributable  to  the  next  of  kin  or  legatees, 
as  an  incident  to  the  administration;  but  the  true  rule  is  to 
restore  such  excess  to  the  fraudulent  grantee,  because  the  fraud- 
ulent conveyance  is  good  between  the  parties  thereto  and  their 
representatives,  binding  all  persons  but  creditors. 

§  287.  Annuities  and  Rent  Charges.  —  An  annuity  is  defined 
to  be  a  yearly  pa\Tiient  of  a  certain  sum  of  money  granted  to 
another  for  life,  or  for  a  term  of  years,  and  charged  upon  the 
person  of  the  grantor  only.  When  charged  upon  real  estate,  it 
is  most  commonly  called  a  rent  charge.  As  personal  property, 
an  annuity  passes  to  the  personal  representative;  but  if  granted 
with  words  of  inheritance  it  is  descendible  and  goes  to  the  heir, 
to  the  exclusion  of  the  executor. 

Dividends  upon  shares  in  a  corporation  bequeathed  to  the 
testator's  widow  for  life,  declared  after  her  death  for  a  period 

1  The  alignment  of  the  States  on  either  side  is  given  m  Woemer  on 
Administration,  §  296. 


§§288,289]  TITLE  TO   CHOSES.  243 

which  expired  during  her  Ufe,  are  included  in  the  bequest,  and 
her  executor  may  recover  them. 

§  288.  Apprentices  and  Servants.  —  Upon  the  death  of  a  mas- 
ter, both  his  servants  and  apprentices  are  discharged,  and 
therefore  the  executor  or  administrator  of  the  former  can  bring 
no  action  to  enforce  the  contract  of  service  after  his  death;  nor 
do  they  take  any  interest  in  an  apprentice  bound  to  the  de- 
ceased, unless  the  infant,  with  the  consent  of  the  father,  had 
bound  himself  by  indenture  to  a  tradesman,  his  executors  and 
administrators,  such  executors  or  administrators  carrying  on  the 
same  trade  or  business. 

§  289.  Copsrrights  and  Patents.  —  Copyrights  were  unknown 
at  common  law.  But  Congress  has  secured  to  the  author  or 
inventor  the  absolute  and  indefeasible  interest  and  property 
in  his  literary  production  or  the  subject  of  his  invention  for  a 
specified  time,  which,  upon  certain  conditions,  may  be  extended 
for  a  further  term  of  years.  During'  this  period  the  law  has 
impressed  upon  these  productions  all  the  qualities  and  charac- 
teristics of  property,  has  enabled  the  author  or  inventor  to  hold 
and  deal  with  the  same  as  property  of  any  other  description, 
and  on  his  death  it  passes,  with  the  rest  of  his  personal  estate, 
to  his  legal  representatives,  becoming  part  of  his  assets.  The 
patent  may  be  applied  for  and  obtained  by  the  executor  or 
administrator,  and  is  then  vested  in  him  not  as  part  of  the  gen- 
eral assets  of  the  estate,  but  in  trust  for  the  heirs  or  devisees, 
"  in  as  full  and  ample  a  manner,  and  under  the  same  conditions, 
limitations,  and  restrictions,  as  the  same  was  held,  or  might 
have  been  claimed  or  enjoyed,  by  the  inventor  in  his  or  her 
lifetime."  ^  It  is  obvious,  that  an  extension  of  the  term  of  let- 
ters patent  and  copyright  may  likewise  be  granted  to  and  held 
by  the  personal  representatives;  and  in  such  case  the  assignee 
of  the  patentee  under  the  original  patent  acquires  no  right  under 
the  extended  patent,  unless  such  right  be  expressly  conveyed 
to  him  by  the  patentee.  The  right  of  personal  representatives 
to  sell  or  assign  a  copyright  or  patent  follows  from  its  quality 
as  property,  and  may  be  made  by  one  of  two  or  more  admin- 
istrators. Action  for  infringement  of  a  patent  may  be  brought 
by  the  administrator,  and  where  a  moiety  has  been  assigned  by 
^  Curt.  L.  Pat.,  §  177. 


244         THE  hA^Y   OF  DECEDENTS'  ESTATES.        [§  290 

the  patentee  he  may  sue,  in*  conjunction  with  the  surviving 
assignee. 

The  analogous  subject  of  trade-marks  is  governed  by  similar 
principles,  and  the  authority  of  personal  representatives  with 
reference  thereto  is  much  the  same  as  with  reference  to  copy- 
rights and  patents.  Paxson,  J.,  passing  upon  the  question  of 
the  right  of  heirs  or  distributees  to  use  the  trade-mark  of  the 
ancestor,^  says  that,  while  the  cases  are  not  uniform  on  this 
subject,  there  is  ample  and  recent  authority  that  a  business 
and  accompanying  trade-mark  may  pass  from  parent  to  children 
without  administration;  and  that  the  business  may  be  divided 
among  the  children,  and  each  will  have  the  right  to  the  trade- 
mark to  the  exclusion  of  all  the  world  except  the  co-heirs.  He 
quotes  from  the  opinion  of  Lord  Cranworth,^  who  argued  that, 
when  a  manufacturer  dies,  those  who  succeed  him  (grandchil- 
dren or  married  daughters,  for  instance),  though  not  bearing 
the  same  name,  yet  ordinarily  use  the  original  name  as  a  trade- 
mark, and  will  be  protected  against  infringement  of  the  ex- 
clusive right  to  that  mark  because,  according  to  the  usages  of 
trade,  they  would  be  understood  as  meaning,  by  the  use  of  their 
grandfather's  or  father's  name,  no  more  than  that  they  were 
carrying  on  the  manufacture  formerly  carried  on  by  him, 

§  290.  Rents.  —  The  general  rule  is,  that  rents  accruing  after 
the  deceased  owner's  death  belong  to  the  heirs  or  devisees,  as  an 
incident  to  the  ownership  of  the  land  which  descends  to  them. 
According  to  this  principle,  the  pa^Tnent  of  rent  to  an  executor 
or  administrator  under  a  lease  from  him  after  the  testator's  or 
intestate's  death  is  no  discharge  as  against  the  heirs,  and  may 
be  recovered  by  them  even  if  the  estate  is  insolvent,  unless  there 
has  been  some  action  to  subject  the  land  to  the  power  of  the 
executor  or  administrator.  The  right  of  the  heirs  attaches  to 
rents  accruing  under  a  leasehold  extending  beyond  the  lessor's 
life,  if  there  be  a  reversion  to  himself  and  his  heirs;  but  if  a  lessee 
for  years  make  an  underlease,  reserving  rent,  such  rent  accru- 
ing after  his  death  goes  to  the  executor  or  administrator,  be- 
cause his  estate  was  but  a  chattel  interest. 

1  Pratt's  Appeal,  117  Pa.  St.  401,  413. 

2  Leather  Cloth  Co.  v.  American  Co.,  11  H.  L.  523,  534.  So  Field,  J., 
in  Kidd  v.  Johnson,  100  U.  S.  617,  620. 


§§291,292]  TITLE  TO   CHOSES.  245 

But  if  the  real  estate  is  necessary  to  pay  the  debts  of  the  de- 
ceased, the  executor  or  administrator  may  be  ordered  to  take 
possession  of  it  and  collect  the  rents  therefrom,  and,  if  these 
are  insufficient,  to  sell  the  land,  or,  in  some  States,  even  take 
possession  thereof  without  the  order  of  court.  It  will  appear 
hereafter,  in  connection  with  the  subject  of  the  duties  of  ex- 
ecutors and  administrators  in  respect  of  real  estate,  that  in  a 
number  of  States  the  distinction  between  real  and  personal 
property  has  been  abolished,  so  that  both  go  to  the  personal 
representative  for  administration.  In  such  States  the  rents 
self-evidently  go  to  the  executor  or  administrator  during  the 
period  of  administration. 

It  is  also  clear  that,  where  the  real  estate  is  devised  to  an 
executor  for  purposes  of  administration,  the  rents  must  be  paid 
to  the  person  administering. 

Rents  which  had  accrued  prior  to  the  death  of  the  testator 
or  intestate  are  mere  choses  in  action,  and  therefore  payable  to 
the  personal  representative. 

§  291.  Apportionment  between  Life  Tenant  and  Remainderman. 
—  At  common  law  there  could  be  no  apportionment  of  rent 
accruing  to  successive  owners,  so  that,  if  a  life  tenant  died  be- 
fore the  rent  reserved  under  a  lease  made  by  him  became  due, 
the  rent  was  lost  both  to  his  executor  and  to  the  reversioner,  — 
to  the  former,  because  no  rent  had  become  due  to  the  testator 
when  he  died;  to  the  latter,  because  he  was  not  the  lessor  of  the 
tenant.  Statutes  in  England  and  the  States  of  this  country  now 
provide  that  where  any  tenant  for  life  died  before  the  time  at 
which  rent  reserved  under  a  demise  from  him,  determining  with 
his  death,  became  due,  the  executor  or  administrator  of  the 
lessor  might  recover  from  the  under-tenant  the  proportion  of 
rent  which  had  accrued  at  the  time  of  the  lessor's  death.^ 

§  292.  The  Wife's  Choses  in  Action.  —  At  common  law,  if  the 
husband  dies  before  the  wife  without  having  reduced  her  choses 
in  action  into  possession,  she,  and  not  his  executors  or  admin- 
istrators, will  be  entitled  to  them.  Where  the  husband  sur- 
vives the  wife,  he  is  entitled  to  administer  on  her  estate,  and  as 
administrator  takes  all  her  personal  estate  remaining  in  action 
or  unrecovered  at  her  death.  Where  he  dies  without  having 
»  Woerner,  §  301. 


246  THE  LAW   OF  DECEDENTS'  ESTATES.  ,[§293 

reduced  the  choses  in  action  of  his  deceased  wife  to  possession, 
they  do  not  go  to  his  administrator,  but  to  one  appointed  to 
administer  her  estate.  In  such  case  the  wife's  representatives 
hold  the  property  in  trust  for  the  husband's  next  of  kin  or  leg- 
atees, subject  to  the  wife's  debts.  Close  questions  arise  as  to 
what  constitutes  reduction  to  possession,  but  the  inquiry  is 
not  here  pursued ;  ^  for  it  is  to  be  remembered  that  recent  legis- 
lation in  most  of  the  States  has  greatly  changed  the  law  with 
reference  to  the  property  rights  of  married  women,  and  that 
in  many  cases  choses  in  action  of  the  wife  not  reduced  by  the 
husband  during  her  lifetime  now  go,  upon  her  death,  to  her 
next  of  kin,  in  the  same  manner  as  if  she  had  been  a  feme  sole. 

§  293.  Actions  accruing  to  the  Representative,  oflacially  or  in- 
dividually. —  It  results  from  the  ownership  of  all  personal  prop- 
erty of  a  deceased  person,  which  by  law  is  placed  in  the  executor 
or  administrator,  that  for  any  injury  thereto  occurring  after 
the  decedent's  death,  and  before  the  final  disposition  to  the 
parties  entitled,  the  action  must  be  brought,  as  we  have  seen, 
by  the  personal  representative.  And  in  such  case,  as  well  as  in 
all  cases  where  the  action  accrues  upon  a  contract  made  by  or 
w^ith  him  as  such  since  the  death  of  the  testator  or  intestate, 
the  action  may  be  brought  in  the  proper  name  of  the  executor 
or  administrator,  or  as  such:  whenever  the  money  when  recov- 
ered will  be  assets,  the  executor  or  administrator  may  sustain  a 
suit  in  his  representative  capacity;  and  may  join  a  count  for 
conversion  before  the  death,  and  one  for  damages  after.  He 
cannot,  however,  join  counts  on  causes  of  action  accruing  to 
him  in  his  private  right  as  individual,  with  counts  on  causes  of 
action  in  his  representative  capacity. 

Since  a  party  to  a  judicial  proceeding  is  bound  thereby,  or  is 
entitled  to  the  benefit  thereof,  only  in  the  capacity  in  which  he 
is  before  the  court,  it  is  often  of  vital  importance  to  determine 
whether  one  who  is  an  executor  or  administrator  appears  in 
his  individual  or  representative  character.  In  such  cases  it  has 
been  held  that  the  insertion  or  omission  of  the  word  "as"  before 
the  representative  title  was  decisive  of  the  question,  and  that 
without  it  the  word  "administrator,"  "executor,"  etc.,  must 
be  regarded  merely  as  descriptio  persons.  But  it  is  now  generally 
1  See  discussion  in  Woemer,  §  302. 


§293]  TITLE  TO   CHOSES.  247 

held  that  the  title  and  pleadings  may  be  considered  together 
to  ascertain  the  true  nature  of  the  action,  and  it  will  be  treated 
as  an  individual  or  representative  one  as  disclosed  upon  an 
inspection  of  the  whole  record.  So  where  an  administrator  has 
obtained  judgment  against  a  debtor  of  the  estate,  he  may  main- 
tain an  action  on  such  judgment,  in  another  State,  in  his  indi- 
vidual capacity,  and  if  he  describes  himself  as  administrator  the 
term  will  be  surplusage  and  disregarded  as  being  simply  a  de- 
scription of  the  person.^ 

^  Woemer,  Administration,  §  303. 


§  294]  WHAT   CONSTITUTES   ASSETS.  249 


TITLE   FOUR. 

OF  THE  DUTIES  OF  THE  PERSONAL  REPRESENTA- 
TIVE IN  RESPECT  OF  THE  ESTATE. 


PART  I. 
OF  ACQUIRING  POSSESSION  OF  THE  ESTATE. 


CHAPTER  XXXII. 

WHAT  CONSTITUTES  ASSETS. 

!5  294.  Meaning  of  the  Term  Assets.  —  Having  In  the  two 
preceding  chapters  examined  the  nature  and  kind  of  property 
to  which  the  title  of  the  executor  or  administrator  of  a  deceased 
person  extends,  it  becomes  necessary  to  point  out  the  circum- 
stances which  make  it  his  duty  to  possess  himself  of  such  prop- 
erty for  the  purpose  of  disposing  of  it  in  accordance  with  the  re- 
quirements of  the  law.  While  the  property  is  in  the  possession 
of  the  personal  representative,  it  is  generally  designated  by  the 
term  "assets";  and  it  may  be  profitable  to  consider  the  nature 
of  assets  generally,  before  treating  of  the  duties  and  liabilities 
of  executors  and  administrators  in  respect  of  the  management 
of  the  estate  coming  into  their  hands. 

In  modern  usage  the  term  assets  (derived  from  the  French 
assez,  sufficient)  is  equivalent  to  property  available,  not  for 
enjoyment,  but  in  trust  or  custody  for  the  payment  of  demands ; 
thus,  the  property  held  by  executors  and  administrators  is 
assets  for  the  payment  of  debts  and  distributive  shares  to 
legatees  and  heirs,  sufficient  to  make  the  executor  or  adminis- 
trator chargeable  to  a  creditor  or  party  in  distribution  so  far 
as  such  property  extends. 


250  THE  L.\W  OF  DECEDENTS'  ESTATES.        [§294 

Where  property  of  a  third  person  comes  to  the  personal 
representative  of  the  deceased  under  claim  of  right  in  the  de- 
ceased, the  question  whether  such  property  is  assets  in  its 
practical  application  means  whether,  in  the  event  that  the  right 
of  the  third  person  ultimately  prevails,  the  recovery  should  be 
against  the  personal  representative  personally,  as  a  matter 
outside  of  the  administration,  or  against  him  in  his  representa- 
tive capacity.  In  the  latter  case  not  only  must  the  estate  of 
the  deceased  respond  to  the  loss,  but  the  bondsmen  of  the  per- 
sonal representative  may  be  liable.  If  the  responsibility  is 
personal,  neither  estate  nor  bond  can  be  held. 

The  rule  is  that  the  personal  representative  is  held  individu- 
ally responsible,  and  not  as  administrator,  in  litigation  concern- 
ing property  taken  by  the  administrator  which  is  ultimately 
adjudged  to  the  third  person  by  legal  title.  There  are  conflict- 
ing cases  which  decide  that  when  the  personal  representative 
asserts  his  claim  bona  fide  for  the  benefit  of  the  estate,  he  is 
liable  qua  administrator,  that  is,  the  estate  is  liable,  and  not 
the  administrator  in  his  individual  capacity.^  But,  as  yet,  the 
weight  of  authority  is  against  this  view.^ 

But  from  these  wrongful  assertions  of  title  by  the  adminis- 
trator those  cases  must  be  distinguished  in  which  the  adminis- 
trator rightfully  acquires  the  property  as  of  the  deceased,  and 
third  persons  claim  the  property  or  some  interest  therein  under 
the  deceased.  For  instance,  a  factor  sells  goods  of  his  principal 
and  takes  a  note  payable  in  his  own  name.  In  such  a  case  if 
the  administrator  collects  that  note  as  administrator,  the  lia- 
bility for  failure  to  account  to  the  principal  attaches  to  his  of- 
ficial position.  He  can  also  be  held  personally  liable  at  the 
election  of  the  claimant.^ 

The  goods  of  a  third  person,  and  the  proceeds  of  any  sale  of 
them,  mixed  with  goods  or  money  of  the  deceased,  and  coming 
with  them  into  the  hands  of  the  administrator  are  not  deemed 
assets  in  his  hands,  but  continue  the  goods  of  such  third  person 
if  they  can  be  traced  in  specie.  But  if  the  property  in  the  hands 
of  the  decedent  belonging  to  others,  whether  in  trust  or  other- 

1  Mulford  V.  Mulford,  40  N.  J.  Eq.  163. 

2  Van  Slooten  v.  Dodge,  145  N.  Y.  327;  Herd  v.  Herd,  71  Iowa  497. 

3  De  Valengin's  Admr.  v.  Duffy,  14  Peters  282,  290. 


§295]  WHAT  CONSTITUTES  ASSETS.  251 

wise,  has  no  ear-marks  and  is  not  distinguishable  from  the  mass 
of  his  own  property,  it  falls  within  the  description  of  assets,  and 
the  owner  has  no  remedy  to  recover  such  property  except  to 
come  in  as  a  general  creditor,  though,  by  statute  in  some  States, 
fiduciary  debts  constitute  a  preferred  class. 

But  under  modern  modifications  of  the  rule,  many  decisions 
hold  that  a  trust  fund,  or  money  held  in  a  fiduciary  capacity, 
does  not  lose  its  distinctive  character  merely  because  it  is  so 
intermingled  with  other  funds  that  the  particular  coins  or  bills 
cannot  be  identified ;  it  is  enough  if  the  fund  can  be  substantially 
followed,  and  the  recent  tendency  seems  not  to  require  the  same 
strictness  of  proof  as  formerly.^ 

§  295.  Assets  not  possessed  by  the  Decedent.  —  Not  only  chat- 
tels in  possession,  but  all  such  which  the  executor  or  adminis- 
trator might  by  reasonable  diligence  possess  himself  of,  con- 
stitute assets  with  which  he  is  chargeable.  So  property  which 
was  never  in  the  testator  or  intestate  is  regarded  as  assets  when 
it  comes  to  the  executor  or  administrator;  —  such  as  money 
received  from  the  United  States  government  by  an  executor  or 
administrator,  in  consequence  of  a  treaty  with  a  foreign  nation, 
as  indemnity  for  loss  of  property  taken  from  the  decedent  by 
such  foreign  nation,  when  given  as  compensation  for  injuries 
suffered  by  the  aggrieved  parties. 

In  like  manner  damages  assessed  during  the  lifetime  of  a  tes- 
tator for  laying  out  a  highway  through  his  land,  but  not  payable 
until  a  day  occurring  after  his  death,  constitute  assets;  salary 
voted  to  a  person  after  his  decease  and  paid  to  his  executors; 
dividends  of  tolls  collected  by  a  turnpike  company  before  the 
death  of  a  stockholder;  money  recovered  on  an  appeal  bond 
given  to  the  obligees  as  executors  and  property  of  an  insolvent 
which  would  have  been  exempt  in  his  lifetime,  though  at  his 
death  in  the  bankruptcy  trustee's  custody,  are  all  assets.  When 
the  payment  to  be  made  after  death  is  a  pure  gratuity,  it  does 
not  constitute  assets,  even  though  payable  to  the  personal  rep- 
resentative of  the  deceased.  Whether  such  claims  be  held  pure 
gratuities  or  not,  the  right  to  present  them  must  be  treated  as 
property  for  the  purpose  of  giving  the  probate  court  jurisdic- 
tion to  grant  letters,  especially  when  the  tribunal  charged  with 
1  Elizalde  v.  Elizalde,  137  Cal.  634. 


252  THE   LAW  OF  DECEDENTS'   ESTATES.  [§  296 

the  distribution  of  the  fund  would  not  recognize  any  but  an 
administrator  appointed  in  the  State  as  competent  to  receive 
the  fund. 

The  money  due  upon  a  policy  of  life  insurance  payable  to  a 
testator  or  intestate  for  the  sole  use  and  benefit  of  himself,  or 
to  his  legal  representatives,  or  according  to  his  will,  is  assets 
wliich  it  is  the  administrator's  duty  to  collect  and  inventory; 
and  he  and  his  sureties  are  liable  for  a  failure  to  administer  the 
avails  of  such  insurance.  So  of  insurance  against  loss  by  fire 
payable  to  the  legal  representatives  of  the  insured.  And  a  life 
insurance  payable  to  a  particular  person  other  than  the  insured 
or  his  representatives  constitutes  no  part  of  the  insured's 
estate,  but  vests  in  the  beneficiary  as  a  gift,  taking  effect  in 
possession  on  his  death;  if  the  beneficiary  die  before  the  in- 
sured, the  insurance  constitutes  assets  in  the  hands  of  the  per- 
sonal representatives  of  the  beneficiary.^ 

Realty  bought  by  an  administrator  for  the  estate  at  his  own 
sale,  to  satisfy  a  judgment  in  favor  of  his  estate,  may  be  treated 
as  personalty  until  his  official  duties  touching  it  are  performed; 
and  realty  acquired  in  satisfaction  of  a  judgment  in  favor  of 
the  estate  is  held  by  him  in  trust  until  it  is  ascertained  that  it 
is  not  needed  to  pay  debts  and  administration  expenses.  So 
also  real  estate  purchased  by  him  for  the  estate  in  foreclosing  a 
mortgage  debt  due  the  estate  is  assets  for  which  he  must  account. 

§  296.  Accretions,  Interest,  Rents,  Profits.  —  It  is  obvious  that 
goods  and  profits  which  have  accrued  since  the  death  of  the 
testator  or  intestate  from  property  in  the  hands  of  the  executor 
or  administrator  are  likewise  assets,  including  interest  received 
by  him,  and  revenues  from  the  estate  in  his  charge,  all  rents  ac- 
cruing from  real  estate,  proceeds  of  sale  thereof,  and  damages 
for  injuries  thereto,  when  such  real  estate  itself  constitutes 
assets.  Where  the  executor  or  administrator  undertakes  to 
carry  on  the  decedent's  trade,  or  does  so  in  pursuance  of  a 
provision  of  articles  of  copartnership  entered  into  by  the  de- 
ceased, or  by  direction  of  the  testator  in  the  will,  or  under  the 
directions  of  a  court  of  chancery,  the  proceeds  of  such  trade  are 
assets  for  which  the  executor  or  administrator  is  liable.    So  the 

^  For  authorities  on  points  in  this  section,  see  Woemer  on  Admin- 
istration, §  306. 


§§297,298]  WHAT  CONSTITUTES  ASSETS.  253 

good  will  of  the  decedent's  business;  but  a  license  to  sell  in- 
toxicating liquors  is  personal  to  the  licensee  and  not  such  prop- 
erty as  will  pass  to  his  administrator  as  assets  of  his  estate; 
but  if  the  grant  of  a  license  had  increased  the  value  of  the  fix- 
tures, good  will  and  unexpired  term  of  a  lease,  the  executor  is 
liable  to  be  surcharged  with  the  enhanced  value  which  might 
have  been  obtained  by  a  sale.  Chattels  real  or  personal,  to 
which  the  executor  or  administrator  becomes  entitled  after 
the  death  of  the  testator  or  intestate,  by  force  of  a  condition, 
are  assets,  as  well  as  such  chattels  which  the  decedent  had 
mortgaged  or  pledged,  and  which  the  executor  or  administrator 
redeemed.  In  like  manner,  the  money  furnished  by  heirs  in 
order  to  save  the  realty  from  being  sold  for  debts  is  assets. 

§  297.  Property  in  Foreign  Jurisdiction.  —  The  ancient  doc- 
trine of  the  common  law  was,  that  "assets  in  any  part  of  the 
world  shall  be  said  to  be  assets  in  every  part  of  the  world."  ^ 
This  doctrine,  applied  in  its  general  scope,  without  reference  to 
the  authority  or  liability  of  particular  administrators  in  differ- 
ent jurisdictions,  is  as  valid  now  as  it  has  been  at  any  time,  and 
is  objectionable  only  as  containing  an  unmeaning  truism,  re- 
solvable into  the  proposition  that  assets  are  assets.  It  is  very 
clear  that  an  administrator  cannot  be  held  accountable  for 
property  which  it  was  not  in  his  power  to  recover  or  obtain 
possession  of;  hence  the  doctrine  that  assets  anywhere  are 
assets  everywhere  is  true  only  as  applied  to  property  which  the 
administrator  may  lawfully  collect  or  recover  under  the  law 
of  the  forum  granting  the  letters;  for  only  such  property  is 
"assets"  within  the  definition  given  in  Touchstone.  It  is  ac- 
cordingly held,  that  an  executor  appointed  in  one  State  cannot 
be  held  to  account  for  assets  received  in  another  State.  The 
liability  of  the  executor  or  administrator  in  such  case  is  in  his 
individual  capacity,  not  enforceable  in  the  probate  court,  but 
in  a  court  of  law  proceeding  according  to  the  ordinary  forms, 
or  in  a  court  of  chancery. 

The  situs  of  a  debt  as  conferring  jurisdiction  has  been  dis- 
cussed ante,  §  187. 

§  298.     Property  lost   through  Administrator's  Negligence  as 
Assets.  —  The  term  assets  is  applicable  not  only  to  property 
1  Touchstone,  496. 


254  THE  LAW  OF  DECEDENTS'   ESTATES.  [§299 

actually  taken  into  possession  by  the  executor  or  administrator, 
but  to  all  which  he  might  have  possessed  himself  of  by  the  ex- 
ercise of  reasonable  diligence.  Hence  he  is  chargeable  with 
personal  property  belonging  to  the  estate  of  his  testator  or 
intestate,  and  lost  through  his  negligence,  although  it  never 
came  to  his  hands.  It  has  been  held  that  he  is  not  liable  for 
the  loss  of  assets,  even  if  he  had  them  in  possession,  unless  he 
has  been  guilty  of  such  gross  neglect  as  will  amount  to  mala 
fides;  but  the  prevalent  rule  as  to  the  liability  of  executors  and 
administrators  requires  of  them  that  degree  of  care  and  skill 
which  prudent  men  exercise  in  the  direction  and  management 
of  their  own  affairs. 

§  299.  Debts  of  Executors  or  Administrators  as  Assets.  —  In  the 
absence  of  statutory  provisions  to  the  contrary,  the  nomination 
by  a  testator  of  his  debtor  as  executor  operates  the  extinguish- 
ment of  the  debt,  because  an  executor  cannot  maintain  an 
action  against  himself;  and  the  personal  action  once  suspended 
by  the  voluntary  act  of  the  creditor,  it  is  forever  gone  and  dis- 
charged, except  against  the  creditors  of  the  testator.  But  in 
equits^  the  debt  is  presumed  to  have  been  paid  by  the  executor, 
and  constitutes  assets  for  the  payment  of  the  testator's  debts 
and  legacies,  because  in  equity  that  which  the  law  requires  to 
be  done  must  be  presumed  against  the  obligor  to  have  been  done. 
The  appointment  of  a  debtor  as  administrator  of  his  creditor's 
estate  has  a  similar  effect  for  the  same  reasons;  but  since  the 
appointment  of  the  administrator  is  not  the  voluntary  act  of 
the  intestate,  the  debt  is  not  extinguished,  but  the  action  there- 
for only  suspended  by  such  appointment;  hence  the  adminis- 
trator de  bonis  non  of  the  intestate  has  an  action  against  the 
representative  of  a  deceased  administrator  debtor. 

In  America  the  equitable  rule  above  mentioned  is  generally 
the  rule  at  law  also,  and,  in  the  absence  of  statutory  regulation 
of  the  subject,  the  debts  of  executors  and  administrators  are 
'prima  facie  assets  in  their  hands,  to  be  accounted  for  like  any 
ordinary  assets.  ]\Iost  of  the  States  have  regulated  this  question 
by  statute,  declaring  that  the  appointment  of  a  debtor  as  exec- 
utor or  administrator  shall  not  operate  to  extinguish  the  debt. 

The  debt  of  the  executor  or  administrator  is  in  these  States 
to  be  accounted  for  as  other  debts  or  assets.  But  in  some  of  the 


§§  300,  301]  WIL\T  CONSTITUTES  ASSETS.  255 

States  the  statute  makes  the  executor  or  administrator  hable 
for  the  amount  of  his  debt  as  for  so  much  cash  in  hand.  It  is 
clear  that  in  these  States  a  solvent  administrator's  note  in 
favor  of  the  estate  is  cash  assets  and  the  sureties  on  his  bond  are 
liable;  but  in  some  of  the  States  it  is  held  that  the  administrator 
and  his  sureties  are  equally  liable,  whether  or  not  the  adminis- 
trator was  solvent  during  any  period  of  the  administration,  by 
operation  of  the  legal  fiction,  that  where  the  right  to  demand 
and  the  liability  to  pay  co-exist  in  the  same  person,  the  law 
presumes  instantaneous  payment,  and  extinguishes  the  debt. 

But  not  all  States  favor  the  proposition  that  the  statutory 
conversion  of  the  administrator's  debt  is  equivalent  to  its  col- 
lection in  cash.  It  is  accordingly  held  in  a  number  of  States 
that  the  executor  or  administrator  may  defend  against  his 
official  liability  by  showing  that  at  the  time  of  the  grant  of 
letters  he  was,  and  until  the  time  of  the  final  settlement  he 
remained,  insolvent.^ 

§  300.  Property  in  Auter  Droit  not  Assets.  —  As  w^e  have  seen 
{ante,  §  29-1),  money  or  property  which  was  held  by  one  in  trust 
for  another,  is  not  assets  in  the  hands  of  the  personal  represent- 
ative of  the  deceased  trustee  against  the  beneficiary  of  the 
trust. 

§  301.  Legal  and  Equitable  Assets.  —  In  England,  and  in  some 
of  the  American  States,  a  distinction  is  recognized  between 
assets  which  may  be  reached  at  law,  or  legal  assets,  and  such 
as  can  be  administered  only  in  equity,  or  equitable  assets.  Legal 
assets  must  be  administered  by  the  executor  or  administrator 
in  due  course  of  administration,  having  regard  to  the  rules  of 
priority  among  creditors  recognized  at  law,  which  will  be  con- 
sidered more  fully  hereafter;  but  equitable  assets,  although  debts 
are  to  be  paid  out  of  them  before  legacies,  are  to  be  distributed 
among  creditors  pari  passu,  without  regard  to  priority  of  one 
debt  over  another. 

In  most  of  the  American  States,  the  whole  matter  of  assets 
is  regulated  by  statute,  and  the  distinction  between  legal  and 
equitable  assets  is  of  little  or  no  practical  importance,  not  only 

1  With  reference  to  the  attitude  toward  the  questions  discussed  in  this 
section,  the  States  are  listed  and  the  authorities  quoted  in  Woerner  on 
Administration,  §  311. 


256  THE  LAW  OF  DECEDENTS'  ESTATES.  [§  302 

because  in  many  instances  the  necessary  equity  powers  to  deal 
with  this  subject  are  vested  in  the  probate  courts,  but  chiefly 
because  the  statutes  themselves  determine  the  powers,  duties 
and  liabilities  of  executors  and  administrators,  and  the  manner 
of  subjecting  the  property  of  decedents  to  the  payment  of  their 
debts. 

§  302.  Personal  and  Real  Assets.  —  Assets  are  also  distin- 
guished, at  common  law,  as  personal  and  real,  the  latter  being 
liable,  in  the  hands  of  the  heirs,  for  debts  of  the  ancestor  on 
bonds,  covenants,  and  other  specialties  when  the  decedent 
bound  himself  and  his  heirs.  The  liability  of  real  estate  was 
extended  by  statute  to  all  debts,  whether  on  simple  contracts 
or  on  specialty,  and  heirs  and  devisees  made  liable  to  the  same 
suits  in  equity  for  simple  contract  debts  of  their  ancestor  or 
testator  as  they  had  at  common  law  been  liable  to  for  debts 
by  specialty.  But  in  the  American  States  the  subjection  of  real 
estate  of  deceased  persons  to  the  payment  of  their  debts  is  so 
fully  covered  by  statutory  law  that  it  becomes  necessary  to 
devote  a  separate  chapter  to  the  consideration  of  the  general 
principles  and  of  the  mode  of  proceeding  common  to  them.  It 
may  be  stated  here,  however,  that  the  general  rule  in  America 
is  to  hold  the  real  estate  of  deceased  testators  and  intestates 
liable  for  the  payment  of  all  their  debts,  without  regard  to 
quality  or  degree,  and  mostly  their  legacies,  in  all  cases  where  the 
personalty  is  insufficient  for  such  purpose;  and  this  without 
recourse  to  equity,  by  summary  proceedings  in  the  probate 
courts. 


§§  303,  304]       OF  THE   INVENTORY  AND  APPRAISAL.  257 


CHAPTER  XXXIII. 

OF  THE  INVENTORY  AND   APPRAISAL. 

§  303.  Office  and  Necessity  of  the  Inventory.  —  One  of  the 
most  important  duties  incumbent  upon  executors  and  adminis- 
trators, involving  equally  their  own.  protection  and  that  of  the 
estates  committed  to  their  care,  is  the  making  of  an  accurate 
inventory  of  all  the  property,  both  real  and  personal,  including 
chattels  in  possession  and  choses  in  action,  as  well  as  contingent 
or  prospective  interests.  Inventories  are  required  from  execu- 
tors and  administrators  by  statute  in  every  State  in  the  Union, 
and  the  making  of  "  a  true  and  perfect  inventory  of  all  the  goods, 
chattels,  credits,  and  estate  that  have  or  shall  come  to  his 
hands,  possession,  or  knowledge,"  is  usually  one  of  the  condi- 
tions of  the  bond  given  by  them;  so  that  the  mere  omission  to 
make  and  return  the  inventory  is  a  breach  of  the  bond,  and 
renders  the  executor  or  administrator  liable,  but  does  not 
render  void  proceedings  had  under  such  administration.  A 
fortiori,  the  wilful  omission  to  include  in  the  inventory  any 
property  kno^vm  to  the  administrator  to  belong  to  the  estate 
of  his  mtestate  is  a  breach  of  his  official  bond.  A  provision  in  a 
will  that  no  inventory  of  the  estate  shall  be  filed  is  against 
public  policy  and  void. 

The  presumption  arising  against  an  executor  or  administrator 
by  reason  of  his  failiu-e  to  return  an  inventory,  although  not 
sufficient  of  itself  to  charge  him  with  the  payment  of  debts  or 
legacies,  is  yet  a  strong  circumstance  in  support  of  the  charge 
of  improper  conduct,  and  the  omission  of  assets  therefrom  is  a 
fraud,  or  its  equivalent,  unless  it  arose  out  of  an  honest  mistake 
of  fact  or  misconception  of  the  law. 

§  304.  Within  what  Time  the  Inventory  must  be  filed.  —  The 
time  for  the  return  of  the  inventory  into  court  is  fixed  in  the 
different  States  at  different  periods.  In  the  American  States 
no  inventory  can  be  required  until  an  executor  or  administrator 


258  THE   LAW  OF  DECEDENTS'   ESTATES.  [§305 

has  been  appointed  by  the  court  having  jurisdiction,  or  until 
the  executor  has  taken  upon  himself  the  administration;  but  a 
commission  is,  in  most  States,  required  to  be  appointed  by  the 
judge  or  court  of  probate,  consisting  of  two,  three,  or  sometimes 
five  discreet  and  disinterested  persons,  whose  duty  it  is  to  value, 
or  appraise,  the  effects  inventoried  by  the  executor  or  admin- 
istrator, or  conjointly  with  him  to  make  out  the  inventory. 
They  are  known,  generally,  as  appraisers,  and  in  all  cases  act 
under  oath. 

If  the  executor  or  administrator  neglect  to  file  the  inventory, 
provision  is  made  for  the  citation  and  attachment  of  the  de- 
linquent by  the  spontaneous  action  of  the  court,  without  motion 
or  petition  by  creditors  or  distributees;  and  if  he  disobey  the 
citation,  he  may  be  coerced  by  fine  or  imprisonment  for  con- 
tempt of  court,  or  be  removed  from  office  for  neglect  of  duty. 
But  creditors  and  distributees  of  a  decedent  have  also  the  right 
to  require  the  executor  or  administrator  to  file  an  inventor}', 
and  an  application  for  an  order  of  the  probate  court  for  that 
purpose  will  not  be  refused,  if  made  ^^'ithin  a  reasonable  time. 

In  most  States,  it  is  required  that,  if,  after  returning  the  in- 
ventory, other  goods  or  property  of  any  kind  come  to  the  hands 
or  knowledge  of  the  administrator,  an  additional  inventory  shall 
be  exliibited,  including  the  newly  discovered  assets. 

§  305.  What  Property  must  be  inventoried.  —  The  inventory 
must  include  all  personal  property  of  the  decedent,  of  whatever 
kind  or  nature,  which  is  or  may  become  assets.  To  this  extent 
the  statutes  of  all  the  States  are  alike.  But  with  respect  to 
the  property  appropriated  by  the  law  for  the  immediate  support 
of  the  widow  and  minor  children,  in  which  neither  the  creditors 
nor  other  legatees  or  heirs  can  have  any  interest,  there  is  some 
diversity  in  the  legislation.  In  many,  if  not  most,  of  the  States, 
provision  is  made  excluding  such  property  from  the  general 
inventory;  in  several  of  them,  the  executor  or  administrator,  or 
the  commissioners  appointed  to  appraise  the  property,  are 
required  to  make  a  separate  inventory  and  appraisal  of  the  prop- 
erty allowed  or  set  out  to  the  mdow  or  family;  but  in  others  no 
provision  is  made  on  this  subject.  In  these  States  it  seems  that, 
in  the  absence  of  a  statutor}^  provision  to  the  contrary,  it  is  the 
administrator's  duty  to  inventory  and  cause  to  be  appraised 


§  305]  OF  THE   INVENTORY  AND   APPRAISAL.  259 

the  widow's  absolute  property,  together  with  the  property 
generally;  and  having  charged  himself  with  the  amount  thereof, 
he  will  be  entitled  to  take  credit  for  whatever  amount  he  turns 
over  or  pays  to  the  widow,  either  upon  order  of  the  court,  or 
in  compliance  with  the  statutory  allowance. 

Real  estate  constitutes  assets  to  pay  debts,  and  when  neces- 
sary for  that  purpose  it  goes  to  the  personal  representative  and 
must  obviously  be  inventoried.  But  since  it  cannot  always  be 
known  at  the  time  of  making  the  inventory  whether  the  personal 
property  is  or  is  not  sufficient  to  pay  the  debts,  or  whether  re- 
course must  be  had  to  the  real  estate  for  that  purpose,  it  is  pro- 
vided by  statute  in  England,  and  most  of  the  American  States, 
that  all  real  estate  belonging  to  the  decedent  shall  be  included 
in  the  original  inventory,  or,  if  discovered  subsequently,  in  an 
additional  inventory.  Specific  personal  property  in  the  hands 
of  a  testator  or  intestate  at  the  time  of  his  death,  belonging  to 
others,  which  he  holds  in  trust  or  otherwise,  and  which  can  be 
clearly  traced  and  distinguished  from  his  own,  is  not  assets, 
but  is  to  be  held  by  the  executor  or  administrator  as  the  de- 
ceased himself  held  it;  and  it  is  not,  of  course,  to  be  inventoried. 

In  almost  every  State  the  statute  enumerates  the  different 
kinds  of  personal  property  which  is  required  to  be  inventoried, 
such  as  "goods,  chattels,  money,  books,  papers,  and  evidences 
of  debt,"  etc.  This  includes  debts  due  by  the  executor  or  ad- 
ministrator, because  in  America  the  appointment  of  an  executor 
or  administrator  who  happens  to  be  a  debtor  to  the  testator  or 
intestate  does  not  cancel  the  debt.  He  is  to  inventory  all  the 
personal  property  of  which  he  has  any  knowledge;  hence  it  has 
been  held  that  assets  belonging  to  a  deceased  resident,  situated 
in  another  State,  must  be  included;  but  this  can  apply  to  such 
assets  only  as  are  not  in  the  rightful  possession  of  an  adminis- 
trator in  such  other  State,  or  that  may  come  within  the  juris- 
diction of  the  State  granting  the  letters.  In  those  of  the  States 
in  which  the  executor  or  administrator  is  authorized  to  impeach 
the  conveyance  of  his  intestate  or  testator  on  the  ground  of 
fraud  against  creditors,  he  must  also  inventory  all  property  so 
fraudulently  conveyed.  Property  in  the  possession  of  other 
parties,  if  it  belong  to  the  decedent's  estate,  must  also  be  in- 
ventoried.   And  it  is  proper,  and  the  duty  of  the  administrator, 


260  THE  LAY,'  or  DECEDENTS'  ESTATES.        [§  30G 

to  inventory  all  property  found  among  the  effects  of  the  de- 
ceased, if  he  does  not  know  them  to  belong  to  another. 

The  executor  or  administrator  can  be  required  to  inventory 
only  the  property  which  belonged  to  the  decedent  at  the  time 
of  his  death,  in  his  own  right,  or  to  which  the  personal  represent- 
ative is  entitled  in  his  official  capacity,  as  distinguished  from 
the  heir,  legatee,  widow,  or  donee  mortis  causa  of  the  testator 
or  intestate.  The  court  has  no  power,  therefore,  to  compel  the 
administrator  to  inventory  property  not  clearly  belonging  to 
the  estate.  On  the  other  hand,  the  court  should  not  reject  an 
inventory  exliibited  because  it  contains  property  the  title  to 
which  is  in  dispute;  because,  as  appears  in  a  former  chapter, 
the  probate  court  has  no  power  to  try  the  title  to  property  be- 
tween the  personal  representative  and  strangers.  A  third 
person  claiming  property  by  title  paramount  is  not  prejudiced 
by  the  fact  that  such  property  is  inventoried  as  assets  of  the 
estate. 

If  no  property  come  to  the  knowledge  of  the  administrator 
he  cannot,  of  course,  make  an  inventory;  but  he  should  never- 
theless file  an  affidavit  showing  that  no  assets  came  to  his  hands, 
for  the  information  of  the  court  and  parties  in  interest. 

§  308.  Details  of  the  Inventory.  —  The  inventory  should  not 
only  be  full  and  complete,  so  as  to  include  every  item  of  prop- 
erty belonging  to  the  estate,  but  it  should  set  out  each  item 
separately,  with  the  amounts  indicating  the  value  or  appraise- 
ment in  detail.  As  a  question  of  policy,  it  is  evident  that  the 
additional  labor  and  expense  involved  in  minutely  itemizing 
each  article,  account,  note,  bond,  etc.,  rather  than  grouping  or 
aggregating  them  and  stating  the  value  or  amount  in  the  sum 
is  insignificant  when  compared  with  the  importance  of  the  safe- 
guard thus  obtained  for  the  interest  of  the  estate,  and  the  pro- 
tection thereby  afforded  to  the  executor  or  administrator  who  is 
disposed  to  act  with  diligence  and  in  good  faith.  But  this  is 
not  only  a  question  of  policy  addressing  itself  to  the  judgment 
of  parties  managing  estates;  it  is  a  legal  obligation.  The  statute 
in  nearly  every  State  requires  not  only  "  a  full,  true,  and  perfect 
inventory,"  etc.,  but  also  directs  that  each  article  of  property 
shall  be  separately  appraised  and  its  value  noted.  It  is  the  duty 
of  the  court  to  which  an  inventory  is  returned  to  reject  it  if 


§§  307,  30S]       OF  THE   INVENTORY  AND   APPRAISAL.  261 

not  made  In  compliance  with  law,  and  require  a  new  one  which 
shall  be  in  due  form. 

§  307.  Indication  of  the  Value  of  Assets.  —  The  utility  and 
value  of  the  inventory  depend  in  a  great  measure  upon  the  reli- 
ance that  may  safely  be  placed  on  the  value  of  the  property 
therein  listed.  Provision  is  therefore  made  in  many  of  the 
Statutes,  that  either  the  executor  or  administrator  making  the 
inventory,  or  the  commissioners  appointed  to  make  the  ap- 
praisal, shall  state  as  fully' and  accurately  as  may  be  possible 
to  them  whether  the  debts  inventoried  are  sperate,  doubtful, 
or  desperate,  or  what,  in  the  opinion  of  the  executor  or  admin- 
istrator, may  be  collected  of  the  securities  and  debts.  Debts 
inventoried  without  comment,  or  showing  that  they  are  desper- 
ate or  doubtful,  must  be  accounted  for,  unless  the  executor  or 
administrator  show  that  set-offs  existed,  or  that  the  debtors  were 
insolvent;  and  the  presumption  of  solvency  of  the  debtor  is 
stronger  where  the  administrator  himself  is  the  debtor.  Debts 
inventoried  as  desperate  the  administrator  will  not  be  charged 
with,  and  the  sale  of  notes  and  accounts  inventoried  as  valueless 
and  of  bad  debts  is  proper,  and  the  administrator  is  chargeable 
only  with  the  proceeds  of  such  sale.  Debts  of  non-resident  in- 
solvent debtors  may,  it  has  been  held,  be  omitted  from  the 
inventory  entirely.  The  appraisers  must  also  estimate  the  value 
of  chattels  in  possession  belonging  to  estates,  noting  each  article 
exhibited  to  them,  and  affixing  the  price  which,  in  their  opinion, 
it  is  worth.  It  has  already  been  mentioned  that  the  statutes 
require  great  minuteness  and  particularity  in  the  appraisement, 
—  a  provision  which  appraisers  should  never  lose  sight  of. 

§  308.  Appraisement  of  the  Goods.  —  The  importance  and  re- 
sponsibility of  the  office  of  appraisers  or  commissioners  to  value 
the  property  belonging  to  the  estates  of  deceased  persons  are 
not  always  sufficiently  appreciated.  Although  not  technically, 
in  most  cases,  conclusive  either  for  or  against  the  executor  or 
administrator,  the  inventory  and  appraisement  are  in  every 
instance  prima  facie  evidence,  and  therefore  decisive  always 
when  not  obviously  erroneous,  or  when  clear  and  convincing 
evidence  is  not  attainable  to  rebut  their  prima  facie  validity. 
And  they  are  of  necessity  conclusive  when  other  parties  have 
been  governed  by,  or  act  upon  the  faith  of,  such  appraisement. 


2G2  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  308 

Nor  are  their  duties  free  from  difficulty:  the  statute  requires 
the  property  to  be  appraised  "at  its  true  vahie,"  and  leaves 
the  appraisers  to  their  own  resources  to  find  what  "true  value" 
is.  For  purposes  of  appraisement  the  value  of  property  is 
what  it  will  bring.  Appraisers  are  therefore  not  concerned 
about  the  cost  of  the  property  submitted  to  them  for  valuation, 
nor  its  intrinsic  value,  but  only  in  the  amount  of  dollars  and 
cents  which  it  can  be  exchanged  for.  With  regard  to  the  fur- 
ther question  as  to  what  method  of  exchange  is  to  be  contem- 
plated by  them  for  the  purpose  of  valuation,  it  must  be  remem- 
bered that  executors  and  administrators  are  not  required  to  be 
merchants  or  salesmen,  and  that  the  law  requires  the  sale  of 
property  of  deceased  persons,  generally,  to  be  at  public  outcry 
to  the  highest  bidder.  The  price  which,  in  their  opinion,  prop- 
erty will  bring  at  such  a  sale,  should  then,  it  would  seem,  be 
their  valuation  or  appraisal. 


309]        DUTIES   OF  EXECUTORS  AND  ADMINISTRATORS.  263 


CHAPTER  XXXIV. 

DUTIES  OF  EXECUTORS  AND  ADMINISTRATORS  IN  TAKING  CHARGE 

OF  THE   ESTATE. 

§  309.  Duty  of  Administrators  to  take  Estate  into  Possession.  — 
It  is  the  duty  of  executors  and  administrators  to  collect  and 
take  into  possession  all  the  goods  and  chattels  that  belonged  to 
or  were  in  the  possession  of  the  late  testator  or  intestate  at  the 
time  of  his  death,  so  far  as  they  have  knowledge  thereof,  and 
which  they  may  recover  by  the  exercise  of  reasonable  diligence 
and  prudence.  For  any  wilful  or  negligent  omission  to  do  so,  or 
to  protect  and  preserve  the  same  until  they  are  delivered  to 
those  to  whom  they  belong  by  the  terms  of  the  will  or  Statute 
of  Distribution,  they  make  themselves  liable  on  their  bond.  It 
is  for  the  administrator  to  determine  what  property  belongs  to 
the  estate  in  his  charge;  and  to  bring  the  necessary  suit  at  law 
or  in  equity  to  recover  the  same,  without  waiting  for  an  order 
from  the  probate  court  to  that  effect. 

The  duty  of  taking  possession  of  trust  funds  which  remain  in 
the  hands  of  a  decedent  at  the  time  of  his  death,  and  settling 
his  accounts  in  relation  to  the  trust,  devolves  primarily  upon 
his  executor  or  administrator;  the  latter  is  not  bound  to  proceed 
in  the  execution  of  the  trust,  but  must  preserve  the  fund  for 
those  entitled.  But  the  trust  fund,  not  having  been  the  prop- 
erty of  the  deceased,  passes  into  the  custody  of  the  representa- 
tive, who  is  a  kind  of  bailee  for  the  true  owner. 

Their  authority  is  co-extensive  with  that  of  the  law  of  the 
State  or  country  granting  their  letters;  hence  their  duty  is  to 
take  into  possession  all  the  goods,  rights,  chattels,  and  credits 
of  the  late  decedent  found  within  this  jurisdiction.  And  it  has 
been  held  that,  where  a  testator  left  property  within  another 
jurisdiction,  it  is  the  duty  of  the  executor  to  take  probate  of 
the  will  there,  or  such  other  steps  as  may  be  necessary  to  enable 
him  to  collect  such  property.    But  this  doctrine  is  greatly  at 


264  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  310 

variance  with  the  views  entertained  in  other  States,  in  some 
of  which  courts  go  to  the  length  of  holding  that  an  adminis- 
trator cannot  be  made  liable  for  property  of  the  intestate 
actually  received  in  another  jurisdiction;  and  the  case  of 
Schultz  V.  Puher,^  holding  the  administrator  liable  for  not  col- 
lecting assets  in  a  foreign  State,  was  decided  by  a  court  nearly 
evenly  divided,  some  of  the  Senators  expressing  themselves 
very  earnestly  against  the  prevailing  opinion.  Where  foreign 
executors  and  administrators  are  permitted  to  maintain  actions 
without  new  probate  or  appointment  in  the  State  rei  sitce,  in 
consequence  of  which  the  Statute  of  Limitation  is  held  to  run 
from  the  date  of  the  foreign  probate  or  appointment,  it  would 
seem  necessary,  to  avoid  the  loss  to  the  estate  of  assets  so  situ- 
ated, that  the  executor  or  administrator  should  collect  the  same. 
The  appointment  of  a  domestic  administrator  in  such  State 
will  clearly  defeat  the  right  of  any  foreign  executor  or  adminis- 
trator to  recover  the  assets;  and  it  is  self-evident  that,  in  those 
States  in  which  the  authority  of  foreign  executors  and  admin- 
istrators is  not  recognized,  the  Statute  of  Limitations  cannot 
be  held  to  run  before  the  appointment  of  a  domestic  adminis- 
trator; the  chief  reason  for  holding  administrators  liable  to  collect 
such  property  does  not,  therefore,  exist. 

§  310.  Right  of  Administrator  paramount  to  Heir  or  Legatee. 
—  The  executor  or  administrator  stands  as  the  representative 
of  those  to  whom  the  personal  property  of  the  deceased  de- 
volves, whether  creditors,  legatees,  or  distributees;  and  his 
action  in  respect  thereof,  in  the  absence  of  fraud  or  collusion, 
is  conclusive  upon  them.  And,  since  the  executor  or  adminis- 
trator is  entitled  to  the  possession  of  all  the  personal  property 
and  chattels  of  the  decedent,  neither  heirs  nor  legatees  can  pre- 
vent him  from  taldng  and  collecting  the  same,  and  subjecting 
to  sale  a  sufficient  amount  thereof  to  pay  the  debts  and  legacies, 
unless  they  should  furnish  him  with  money  to  do  so.  As  a  rule, 
only  the  executor  or  administrator  can  maintain  actions  in 
behalf  of  the  estate,  or  make  distribution.  If  the  administrator 
refuses  or  neglects  to  bring  the  action,  the  remedy  of  the  in- 
jured parties  is  on  the  administrator's  bond. 

So,  although  in  most  States  the  real  estate  descends  at  once 
1  11  Wendell  361.    See  Woemer  on  Administration,  §  321. 


§§311,312]    DUTIES  OF  EXECUTORS  AND  ADMINISTRATORS.      265 

to  the  heirs  or  devisees  free  from  the  control  of  the  personal 
representative,  so  that,  as  we  have  already  seen,  actions  con- 
cerning the  same  must  be  maintained  by  or  brought  against 
the  real,  and  not  the  personal  representative,  yet  the  right  of 
the  administrator  to  subject  the  real  estate  to  sale  for  the  pay- 
ment of  debts  is  paramount  to  the  claims  of  the  heir  or  devisee, 
or  of  his  vendee  or  assignee. 

§  311.  Their  Duty  to  prosecute  and  defend  Actions  pending  by 
or  against  the  Estate.  —  It  is  their  duty  to  prosecute  and  defend 
all  actions  commenced  by  and  against  the  testator  or  intestate 
which  survive  to  or  against  the  personal  representative.  There 
may  also  be  judgment  after  the  death  of  a  party  if  verdict  has 
been  rendered  before  in  actions  which  do  not  survive.  Thus, 
as  a  matter  of  practice  at  common  law,  as  well  as  under  statutes 
in  the  several  States,  judgment  will  be  entered  on  the  verdict, 
on  motion,  as  of  a  preceding  day,  or  term  of  the  court,  whenever 
an  action,  continued  or  postponed  for  the  purpose  of  obtaining 
a  disposition  which  may  relieve  a  dissatisfied  party  from  a 
verdict,  would  otherwise  fail  by  the  death  of  a  party  to  it. 
With  the  exception  just  stated,  the  action  abated  at  common 
law  when  the  testator  or  intestate  died  before  final  judgment; 
but  by  statute  in  England,  the  American  States,  and  the  Fed- 
eral Courts,  the  action  may  be  continued  in  the  name  of  the 
personal  representative  by  his  voluntary  appearance,  or  the 
service  upon  him  by  the  other  party  of  a  scire  facias,  or  notice. 
It  has  also  been  held,  generally,  by  what  seems  to  be  the  pre- 
ponderance of  authority,  that  in  courts  of  plenary  jurisdiction 
a  judgment  rendered  for  or  against  a  party  after  his  death,  if 
the  action  is  regularly  begun  in  his  lifetime,  is  erroneous,  but 
not  for  that  reason  void,  while  a  judgment  in  a  suit  begun  and 
prosecuted  for  or  against  a  dead  man  is  clearly  void. 

In  America,  an  executor  or  administrator  may  generally 
obtain  the  same  remedy  upon  a  judgment  in  favor  of  the  tes- 
tator or  intestate  during  his  lifetime  as  the  deceased  could  have 
done.  It  is  the  duty  of  an  administrator  de  bonis  non  to  assume 
the  defence  of  an  action  against  his  predecessor  on  a  contract 
of  the  deceased,  and  to  prosecute  suits  commenced  by  his 
predecessor. 

§  312.    Actions  to  recover  or  defend  the  Estate.  —  Executors 


266  THE   LAW   OF  DECEDENTS'   ESTATES.  [§313 

and  administrators  are  bound  to  prosecute  all  actions  that  may 
become  necessary  to  recover  debts  owing  to  the  estate,  or  prop- 
erty of  any  kind,  and  to  protect  the  interest  of  the  estate  when- 
ever the  same  is  jeoparded.  To  this  end  they  must  act  not 
only  with  honest  intent  and  perfect  integrity,  but  also  with 
promptness  and  diligence,  and  reasonable  prudence  and  fore- 
sight. They  are  required  to  investigate  the  circumstances  at- 
tending the  affairs  of  the  estate,  lest  by  indifference  and  indo- 
lence its  debtors  escape  or  become  insolvent,  and  the  estate 
suffer.  If  they  are  remiss  in  their  duty  in  this  respect,  they 
become  liable  personally,  and  on  their  bond,  for  whatever  loss 
may  ensue. 

But  they  are  not  bound  to  attempt  the  collection  of  bad  or 
doubtful  debts,  or  to  prosecute  claims  of  a  doubtful  character, 
at  least  not  unless  the  parties  demanding  such  prosecution  will 
indemnify  the  estate  or  the  executor  or  administrator  against 
the  costs.  Nor  are  they  liable  for  a  mistake  of  the  law,  whereby 
proceedings  in  collecting  a  debt  are  delayed  until  the  debtor 
becomes  insolvent,  if  they  act  in  good  faith  and  upon  advice 
of  eminent  counsel;  nor  for  failing  to  bring  suit  for  property 
until  the  Statute  of  Limitation  has  barred  recovery,  in  a  case 
where  both  the  law  and  the  facts  are  doubtful,  if  they  act  in 
good  faith  and  without  fraud,  wilful  default,  or  gross  negligence. 
So  a  due  regard  to  the  ultimate  security  of  the  debt  may  require 
hun  to  indulge  the  debtor.  And  although  they  make  themselves 
liable  by  indulging  a  debtor,  yet  the  legatees,  upon  whose  ad- 
\dce  and  request  the  indulgence  is  granted,  will  not  be  heard  to 
complain.  Nor  are  they  obliged  to  maintain  an  unjust  claim 
in  favor  of  the  estate,  or  to  prevent  a  suit  from  being  fairly 
tried  by  insisting  on  technical  advantages;  nor  to  defend  against 
a  just  claim.  It  is  held,  with  some  dissent,  that  the  personal 
representative  may  bind  the  estate  by  consenting  to  a  judg- 
ment, if  there  is  no  substantial  ground  for  defence. 

§  313.  Summaxy  Proceedings  to  recover  Assets.  —  In  addition 
to  the  ordinary  remedies  at  law  and  in  equity  by  means  of 
which  executors  and  administrators  may  recover  the  property 
of  an  estate,  a  summary  proceeding  in  the  probate  court  is 
provided  by  statute  in  many  States,  enabling  them,  or  heirs, 
legatees,  or  other  parties  interested  in  the  estate,  to  make  dis- 


§313]        DUTIES  OF  EXECUTORS  AND  ADMINISTRATORS.  267 

covery,  and  in  some  States  to  compel  the  production  and 
delivery  of  property  suspected  to  be  concealed  or  embezzled, 
in  a  more  speedy  and  less  expensive  mode  than  by  the  ordinary 
remedies  of  bill  of  discovery,  detinue,  trover,  replevin,  or  other 
action  at  law. 

In  a  great  number  of  States  power  is  given  to  probate  courts 
to  cite  parties  suspected  of  having  concealed,  embezzled,  or 
converted  any  goods,  chattels,  or  money,  or  having  in  their  pos- 
session or  knowledge  any  evidences  of  debt  or  right  of  the  de- 
ceased, and  compel  such  persons  to  answer  under  oath.  The 
proceeding  in  such  case  is  held  to  be  plenary,  the  object  being 
to  perpetuate  the  evidence  against  the  party  charged,  to  be 
used  upon  any  action  to  be  brought  thereon,  and  the  testimony 
must  be  reduced  to  writing.  In  many  of  these  States,  a  like 
proceeding  is  authorized  against  persons  to  whom  the  executor 
or  administrator  intrusted  property  of  the  estate,  and  who  wrong- 
fully withhold  them.  The  appearance  of  such  parties,  and  their 
answers  to  the  interrogatories  propounded  to  them,  may  be 
enforced  by  attachment  and  imprisonment. 

Under  this  class  of  statutes  all  that  is  attained  is  a  discovery, 
furnishing  a  basis  for  proceeding  in  another  tribunal.  But  in 
other  States  the  party  found  guilty  of  concealing  or  embezzling 
any  property  belonging  to  an  estate  may,  under  the  statute,  be 
compelled  by  the  probate  court  to  produce  the  same,  and  de- 
liver it  to  the  party  entitled.  In  Missouri  it  has  been  finally 
held  that  the  purpose  of  the  statute  was  to  expedite  the  ad- 
ministration by  providing  a  new  arid  speedy  remed}^  for  collect- 
ing assets,  including  the  right  to  try  disputed  claims  of  title  to 
property.^  There  is  thus  in  Missouri  a  regular  trial  in  probate 
court,  with  a  jury,  and  with  witnesses  on  both  sides.  And  in 
that  State  this  proceeding  is  held  applicable  against  executors 
and  administrators,  at  the  instance  of  parties  interested  in  the 
estate,  and,  on  conviction,  the  court  will  compel  such  officials 
to  properly  inventory  the  effects  or  money  in  their  possession. 

WTiere  the  proceeding  under  the  statute  is  more  than  a  bill 
of  discovery  and  culminates  in  a  judgment,  the  decision  is 
final,  so  that  the  discharge  of  the  defendant  upon  such  a  pro- 
ceeding, when  not  appealed  from,  constitutes  a  bar  to  a  recov- 
1  Clinton  v.  Clinton,  223  Mo.  371,  388. 


268  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  313 

ery  in  another  action  between  the  parties  in  respect  to  the  same 
property. 

This  summary  remedy,  whether  as  discovery  or  as  a  proceed- 
ing for  recovery  of  property  generally,  is  not  applicable  unless 
the  identical  property  belonging  to  the  estate,  and  being  iden- 
tified, is  still  in  the  possession  or  mider  the  control  of  the  re- 
spondent. If  the  affidavit  alleging  concealment  or  embezzle- 
ment do  not  affirmatively  show  that  the  party  making  it  has  an 
interest  in  the  estate,  it  is  defective,  and  gives  the  court  no 
jurisdiction  of  the  person  complained  of.  In  most  States  the 
interrogatories  to  the  party  accused  and  his  answers  thereto 
are  required  to  be  in  wTiting. 

The  constitutionality  of  these  statutes  authorizing  summary 
proceedings  has  been  assailed  on  several  grounds.  It  may  be 
urged  that  they  are  penal;  that  by  providing  unprisonment  as 
a  means  for  enforcing  collection,  they  conflict  wdth  constitutional 
pro\'isions  against  imprisonment  for  debt;  that  they  compel  the 
accused  in  a  criminal  case  to  testify  against  himself;  and  that 
they  are  in  conflict  with  constitutional  provisions  against  un- 
reasonable seizure  and  search.  An  additional  question  arises 
when  the  right  to  trial  by  jury  is  not  preserved.  In  general, 
these  statutes  have  been  held  remedial,  not  penal.  While  some 
provisions  have  been  set  aside  as  unconstitutional,  it  is  believed 
there  is  no  ruling  preventing  the  substantial  enforcement  of  the 
system  anjn;\'here  by  proper  legislation.  Further  discussion  is 
outside  the  range  of  this  treatise.^ 

1  Fuller  information  as  to  these  summarj-  proceedings  can  be  found  in 
Woerner  on  Administration,  §  325. 


§  314]         DUTIES   OF   EXECUTORS  AND   ADMINISTRATORS.  209 


PART  II. 
OF  THE  MANAGEMENT  OF  THE  ESTATE. 

CHAPTER  XXXV. 

OF   THE   DUTIES    OF   EXECUTORS   AND    ADMINISTRATORS    WITH 
RESPECT  TO   PERSONAL  PROPERTY. 

§  314.  Compounding  with  Debtors.  —  At  common  law  com- 
promising a  debt  due  an  estate  between  the  debtor  and  the  per- 
sonal representative  of  the  deceased  is  binding  on  the  estate. 
But  if  the  personal  representatives  released  a  debt  due  the 
testator,  or  cancelled  or  delivered  to  the  obligor  a  bond,  or  re- 
leased a  cause  of  action  founded  on  a  tort  accruing  to  the  testa- 
tor or  executor,  or  in  any  manner  forgave  or  indulged  any  part 
of  the  testator's  or  intestate's  demand,  or  the  demand  of  the 
executor  or  administrator,  they  were  chargeable  prima  facie  in 
settlement  of  the  estate  as  against  all  parties  interested  therein 
with  the  whole  of  such  debt  or  demand  with  interest.  But  even 
at  common  law  personal  representatives  are  responsible  only 
to  the  extent  to  which  their  acts  injured  the  estate,  and  so  might 
excuse  themselves  from  liability  by  affirmatively  showing  that 
such  compromises  were  actually  for  the  benefit  of  the  estate. 

But  now,  in  England  and  most  of  the  States  of  this  country, 
provision  is  made  by  statute  authorizing  the  executor  or  ad- 
ministrator to  compromise  with  debtors  under  sanction  of  the 
probate  court.  Such  order,  obtained  in  good  faith,  protects 
the  personal  representative,  though  subsequent  events  make  the 
settlement  thereunder  unfortunate  for  the  estate.  If  the  per- 
sonal representative  acts  without  authority  of  the  court,  or  if 
the  court  is  not  vested  with  the  power  to  grant  such  authority, 
he  does  so  at  his  peril,  and  assumes  the  burden  of  proving,  not 
only  that  he  acted  in  good  faith  and  with  ordinary  prudence, 


270  THE   LAW  OF  DECEDENTS'   ESTATES.         [§§315,316 

but  that  the  estate  has  in  no  wise  been  prejudiced  thereby. 
In  Kansas,  Indiana,  and  some  other  States  these  statutes, 
authorizing  compromises  under  order  of  court,  are  held  to 
change  the  common  law,  so  that  a  settlement  by  the  personal 
representative  without  order  of  court  is  not  binding  on  the 
estate. 

In  the  exercise  of  its  discretion  in  passing  upon  a  petition  or 
motion  for  leave  to  compromise,  the  probate  court  will  be  gov- 
erned by  considerations  for  the  interest  of  the  estate  exclusively. 
Neither  the  executor  nor  the  court  can  modify  a  contract  or 
existing  obligation;  and  the  court  will  never  interfere,  except 
where  the  debtor  is  insolvent,  or  some  doubt  exists  as  to  the 
validity  of  the  claim,  or  there  Is  reason  to  apprehend  that  pay- 
ment cannot  be  coerced.  Even  an  order  of  court  properly 
obtained  does  not  protect  the  representative,  if  the  necessity 
of  such  compromise  was  occasioned  by  his  own  negligence  in 
failing  to  enforce  a  good  claim  before  it  became  doubtful. 
"\Miere  money  is  gained  or  saved  by  executors  or  administrators 
in  compromises,  it  enures  to  the  benefit  of  the  estate,  and  not 
to  themselves. 

§  315.  Arbitration.  —  It  seems  never  to  have  been  doubted 
that  executors  and  administrators  have  full  authority  at  com- 
mon law  to  submit  any  matter  in  dispute,  relating  to  the  estate 
of  a  deceased  person  in  their  hands,  to  arbitration,  and  thereby 
bind  themselves  to  the  extent  of  assets.  But  while  the  award 
is  undoubtedly  binding  upon  the  parties,  as  well  as  upon  those 
having  any  interest  in  the  estate,  it  affords  no  protection  to  the 
executor  or  administrator,  although  acting  in  perfect  good  faith, 
against  liability  as  for  demstavit.  For  if  a  less  sum  should  be 
awarded  than  he  would  be  entitled  to  recover  at  law,  he  may  be 
held  to  account  for  the  deficiency  to  the  heirs  or  other  persons 
interested  in  the  effects  of  the  testator  or  intestate.  There  is, 
therefore,  no  inducement  for  an  executor  or  administrator  to 
submit  a  controversy  concerning  a  demand,  either  in  favor  of 
or  against  the  estate,  to  arbitration;  he  should,  in  self-defence, 
settle  all  such  controversies  in  a  court  of  justice,  unless  the 
award,  under  provision  of  a  statute,  receives  the  force  of  a 
judgment,  as  it  does  in  some  States. 

§  316.     Protest  and  Notice  respecting  Negotiable  Paper.  —  In 


§  316]         DUTIES   OF   EXECUTORS  AND   ADMINISTRATORS.  271 

general  the  executor  or  administrator  of  a  deceased  party  to 
negotiable  paper  stands  in  the  shoes  of  the  deceased  for  purposes 
of  fixing  the  rights  and  liabilities  of  the  other  parties. 

Thus  if  the  holder  of  a  bill  or  note  die,  his  executor  or  admin- 
istrator mus^  make  demand  and  give  notice  of  dishonor,  in 
order  to  bind  indorsers.  But  if,  at  the  time  of  maturity,  no 
representa,tive  of  the  estate  has  yet  been  appointed,  the  indorsers 
will  not  be  discharged  from  liability  if  demand  is  made  of  the 
maker  within  a  reasonable  time  after  the  representative's 
qualification,  and  notice  of  dishonor  is  seasonably  given  to  them 
thereafter. 

So  while  the  soundness  of  the  rule  requiring  presentment  for 
acceptance  to  the  administrator  of  a  deceased  drawee  of  a  bill 
of  exchange  has  been  doubted  by  high  authority,  it  is  held 
that  in  order  to  charge  an  indorser  on  a  promissory  note,  de- 
mand must  be  made  of  the  representative  of  the  deceased  maker, 
if  he  can  by  reasonable  diligence  be  found,  and  no  exception  to 
the  rule  is  made  where  the  indorser  is  appointed  administrator 
of  the  maker's  estate. 

So,  on  the  other  hand,  the  personal  representative  of  a  de- 
ceased indorser,  sought  to  be  held  liable  by  the  holder  of  negotia- 
ble paper,  is  the  only  proper  party  to  be  served  with  notice  of 
dishonor  or  protest,  if  by  reasonable  diligence  the  fact  of  the 
indorser's  death  and  the  appointment  of  such  representative 
can  be  ascertained;  and  this  though  the  maker  becomes  the 
deceased  indorser's  representative. 

Service  of  notice  on  one  of  several  executors  of  a  deceased 
indorser  is  sufficient  to  bind  the  estate.  Upon  the  death  of  one 
partner  the  notice  should  be  served  upon  the  survivor. 

Where  the  holder,  without  being  chargeable  with  negligence, 
does  not  know  of  the  indorser's  death  or  who  his  representative 
is,  notice  directed  in  the  deceased's  name  is  sufficient;  and  like- 
wise if  no  administrator  has  as  yet  been  appointed  upon  whom 
notice  can  be  served,  a  notice  is  good  when  addressed  to  the 
deceased  indorser,  or  to  his  "  legal  representatives,"  at  the  late 
residence.  And  under  such  circumstances  a  notice  served  on 
one  whom  the  will  names  as  executor  is  good,  although  it  may 
be  that  he  will  never  qualify  as  such,  but  not  after  he  has  refused 
to  accept  the  executorship  and  a  special  administrator  been 


272  THE   LAW   OF  DECEDENTS'   ESTATES.  [§317 

appointed;  nor  is  this  principle  applicable  to  a  notice  served 
on  one  who  is  not  at  the  time,  but  later  becomes,  the  adminis- 
trator, as  he  stands  in  a  different  position  from  an  executor  in 
this  respect, 

§  317.  Duties  in  Relation  to  the  Contracts  and  Trade  of  the  De- 
ceased. —  Executors  and  administrators  are  bound,  to  the  ex- 
tent of  the  assets  coming  to  their  hands,  by  the  contracts  of  their 
testators  or  intestates,  including  not  only  debts,  but  also  col- 
lateral acts,  whether  named  in  the  contract  or  not,  or  whether 
it  be  a  simple  or  record  contract;  and  they  must  answer  in 
damages  for  a  breach,  whether  incurred  before  or  after  the  de- 
cedent's death.  Thus,  if  one  agrees  to  build  a  house  before  a 
given  time,  and  dies  before  that  time,  his  executors  are  bound 
to  perform  the  contract;  and  the  completion  by  an  adminis- 
trator of  a  decedent's  contract  to  build  a  house  attaches  to  his 
work  all  the  liabilities  of  the  original  contract,  so  that  a  sub- 
contractor is  entitled  to  his  lien  for  materials  furnished  the 
intestate. 

As  between  the  personal  representative  and  the  ultimate 
beneficiary  of  the  estate,  the  former  may,  as  a  general  rule, 
exercise  his  discretion  whether  to  perform  or  rescind  any  con- 
tract of  the  deceased  imposing  an  obligation  or  duty  upon  him, 
in  the  best  interest  of  the  estate,  subject,  in  general,  to  the  ap- 
proval of  the  court.  If  a  contract  has  been  performed  in  part, 
and  is  then  rescinded,  after  the  contractor's  death,  by  his  ex- 
ecutor, the  other  party  may  recover  for  the  work  already  done, 
if  he  consent  to  the  abrogation;  but  if  he  insist  on  completing 
the  contract,  the  estate  is  bound  for  the  whole.  It  may  be 
proper  to  remark,  in  this  connection,  that  where  an  adminis- 
trator has  his  election  either  to  ratify  or  disavow  the  act  of  his 
intestate,  he  cannot,  after  ratifying,  disavow  it;  as  where  money 
was  procured  from  the  intestate  by  fraud,  or  by  reason  of  his 
insanity,  the  administrator  may  disavow  or  ratify  the  act;  but 
if  he  ratify  the  payment  of  the  money  he  cannot  afterward  pur- 
sue a  remedy  inconsistent  with  such  ratification.  So  the  ad- 
ministrator's election  to  ratify  the  contract  of  an  insane  intes- 
tate validates  the  same  for  all  purposes  and  binds  the  heirs. 
Outstanding  contracts  for  the  improvement  of  the  real  estate 
by  the  erection  of  tenements,  only  partially  fulfilled,  are  a 


§  317]        DUTIES   OF  EXECUTORS  AND  ADMINISTRATORS.  273 

charge  on  the  personal  estate;  although  the  contractor  has  a 
lien  on  the  land  also,  his  remedy  against  the  administrator  is 
not  thereby  impaired. 

If  the  executor  or  administrator  decide  to  enforce  or  carry 
out  the  contract,  he  is  liable  at  common  law  for  the  net  losses 
that  may  accrue  to  the  estate  in  consequence  thereof,  while  any 
profits  arising  become  assets  of  the  estate.  In  equity,  however, 
and  under  the  statutes  of  most  American  States,  the  adminis- 
trator acting  in  good  faith  will  be  protected  in  the  execution 
of  a  contract  the  breach  of  which  would  result  in  damages, 
although  the  estate  is  insolvent,  and  the  loss  in  carrying  out  the 
contract  be  greater  than  the  damages  for  the  breach  would  have 
been. 

Contracts  of  a  personal  nature,  depending  upon  the  personal 
skill  or  taste  of  the  obligee,  such,  for  instance,  as  the  obligation 
of  an  author  to  prepare  a  book  for  publication,  of  a  master  to 
instruct  an  apprentice,  a  contract  to  marry,  or  any  obligation 
to  be  performed  by  the  contracting  party  in  person,  are  not 
binding  upon  the  executor  or  administrator.    - 

The  obligation  of  the  personal  representative  to  execute  con- 
tracts of  the  deceased  extends,  as  is  evident  from  the  statement 
of  the  proposition,  to  such  only  as  were  legally  binding  upon 
the  deceased.  He  cannot  by  any  act  of  his  own  bind  the  estate 
by  a  new  debt  or  obhgation;  hence  any  contract  which  he 
may  enter  into  with  reference  to  the  estate,  though  clearly  in- 
tended and  expressed  to  bind  it,  binds  himself  individually  only, 
as  between  him  and  the  other  contracting  party,  with  the  right, 
on  his  part,  to  resort  to  the  estate  to  reimburse  himself  for  any 
outlays  necessary  to  the  administration  of  the  assets. 

It  follows  from  this  principle,  that  it  is  not  within  the  ordinary 
scope  of  the  authority  of  an  executor  or  administrator  to  carry 
on  the  trade  or  business  of  the  deceased;  and  that  one  who  un- 
dertakes to  do  so  with  the  assets  of  the  estate  necessarily  as- 
sumes the  risk  of  making  good  all  losses  that  may  occur  to  the 
estate,  while  the  profits,  if  any,  become  assets.  The  executor 
or  administrator  is  therefore  chargeable  with  the  assets  coming 
into  his  hands,  including  all  profits  or  returns  from  the  trade 
or  business  which  he  carries  on  therewith,  and  is  not  allowed 
credit  for  his  losses,  even  if  he  acted  in  perfect  good  faith. 


274  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  318 

Protected  from  loss  and  from  liability  at  all  times,  the  estate 
is  interested  in  the  business  only  to  the  extent  of  the  profits. 
And  so,  where  an  executor  or  administrator  with  the  will  an- 
nexed, continues  the  business  of  the  testator  in  good  faith,  in 
compliance  with  a  direction  to  that  effect  in  the  will,  all  losses 
by  bad  debts,  costs  of  personal  property,  purchased  to  replace 
similar  articles  worn  out  or  consumed  in  conducting  the  business, 
expenses  for  repairs,  etc.,  on  the  real  estate  used,  are  properly 
chargeable  against  the  estate.  The  executor  carrying  on  the 
business  under  the  will  is  personally  liable  to  the  persons  with 
whom  he  deals  as  such,  but  an  equitable  right  arises  to  the  trade 
creditors  to  resort  to  the  estate  if  their  remedy  against  the  ex- 
ecutor is  inadequate.  Where  the  executor  or  administrator 
carries  on  the  business  of  the  deceased  in  good  faith,  at  the  re- 
quest of  the  heirs,  distributees,  or  legatees,  they  will  not  be  heard 
to  object  to  credits  in  his  account  for  losses  incurred  in  conse- 
quence thereof;  but  the  onus  lies  upon  the  accountant  in  such 
case  to  show  such  consent  upon  a  full  understanding  of  all  the 
circumstances. 

Upon  executors  and  administrators  devolves  also  the  author- 
ity and  duty  to  vote  the  stock  held  by  their  testators  or  intes- 
tates. It  matters  not,  in  this  respect,  whether  such  stock  was 
held  in  their  o\\ti  right  or  in  trust,  nor  whether  transfer  thereof 
had  been  made  on  the  company's  books.  Since  the  right  to 
vote  follows  and  cannot  be  separated  from  ownership,  it  also 
follows  that  where  stock  is  held  by  several  executors,  who  differ 
as  to  how  it  should  be  voted,  it  cannot  be  voted  at  all. 

§  318.  Preserving  the  Property.  —  Executors  and  administra- 
tors are  responsible  for  the  preservation  of  the  personal  property 
while  it  is  in  their  custody.  Hence  it  becomes  necessary,  in 
many  cases,  in  order  to  avoid  material  loss  and  injury  to  the 
estate,  to  employ  additional  labor  to  take  care  of  horses  or  other 
stock  requiring  attention,  to  tend  and  gather  crops,  to  protect 
property  in  danger  of  being  lost,  and  to  complete  work  in  an 
unfinished  state,  or  contracts  binding  upon  the  personal  rep- 
resentatives. It  is  always  adv-isable  to  obtain  the  order  of  the 
probate  court  in  such  cases;  but  if  such  labor  is  required  when 
court  is  not  in  session,  it  is  their  duty  to  employ  the  necessary 
assistance  at  once;  and  all  reasonable  expenses  so  accruing  con- 


§  319]        DUTIES   OF  EXECUTORS  AXD  .AJ)MINISTRATORS.  275 

stitiite  a  proper  charge  against  the  estate,  and  will  be  allowed 
as  credits  in  the  administrator's  account  or  settlement.  Admin- 
istrators should  not  contribute  voluntarily  to  make  up  losses  of 
incorporated  companies  in  which  the  estate  owns  stocks,  if  they 
are  of  little  or  no  value;  but  if  they  are  valuable,  they  should 
pay  assessments  to  which  they  are  liable,  and  which  consti- 
tute a  lien  on  the  shares  held  by  them,  in  order  to  prevent  their 
forfeiture.  An  executor  or  administrator  has  an  msurable  in- 
terest in  the  property  of  the  estate,  and  is  entitled  to  allow- 
ance for  the  premiums  necessary  to  effect  a  safe  insurance 
thereof. 

The  interest  of  the  estate  may  demand  that  the  executor  or 
administrator  redeem  property  of  the  estate  which  may  be 
mortgaged  or  pledged,  and  in  such  case,  if  it  is  his  duty  to  do 
so,  he  will  be  allowed  all  proper  disbursements  for  that  purpose ; 
but  obviously  he  cannot  be  held  accountable  for  not  redeeming 
property  when  the  estate  has  no  funds  available  for  such  pm- 
pose.  Nor  is  he  liable  for  not  redeeming,  if  in  the  estate's 
interest  he  honestly  and  prudently  exercises  his  best  judgment 
in  declining  to  do  so. 

§  319.  Taxes  on  Personalty.  —  The  duty  of  the  personal  rep- 
resentative in  connection  with  taxation  of  realty  is  discussed  in 
a  later  section. 

Taxes  on  the  personalty  assessed  prior  to  the  decedent's 
death  usually  constitute  a  liability  of  the  estate  which  the  rep- 
resentative should  discharge  out  of  the  personal  assets,  even 
though  the  amount  was  not  definitely  ascertained  at  the  time 
of  the  death  of  the  testator  or  intestate.  Claims  for  such  taxes 
due  from  and  not  paid  by  decedent  before  his  death  may  be 
established  in  the  probate  court,  and  by  statutory  provision 
in  nearly  all  the  States  constitute  a  preferred  class  of  claims. 

Since  the  title  to  the  personalty  and  right  of  possession  vests 
in  the  personal  representative,  taxes  legally  accruing  thereon 
after  the  decedent's  death  and  before  distribution  is  made, 
are  assessed  to,  and  should  be  paid  by,  the  executor  or  admin- 
istrator wdthout  presentation  or  allowance  by  the  probate  court; 
and  when  paid,  he  will  be  entitled  to  credit  therefor  in  his 
account  as  for  expenses  of  administration.  For  purposes  of  taxa- 
tion and  payment  of  taxes,  the  title  and  possession  of  the  exec- 


276  THE   L.VW   OF  DECEDENTS'   ESTATES.  [§  319 

iitor  or  administrator  relates  back  to  the  time  of  tlie  decedent's 
death,  and  that  of  the  administrator  de  bonis  non  to  that  of  his 
predecessor,  so  far  as  affecting  mipaid  taxes.  The  HabiHty  of 
the  representative  for  faihire  to  pay  such  taxes  is  in  some  States 
made  personal,  but  in  others  his  liability  is  official,  and  lie  cannot 
be  held  liable  after  the  estate  has  been  distributed  and  he  dis- 
charged. After  distribution  the  assessment  should,  of  course, 
be  to  the  new  owner,  but  not  before. 

\Mien  the  personalty  of  the  deceased  lies  in  several  States  it 
is  conceded  that  the  rule  that  personalty  follows  the  domicile 
of  the  deceased  does  not  apply  for  purposes  of  taxation.  Goods 
and  chattels  of  the  deceased  found  in  the  ancillary  administra- 
tion are  there  taxable,  and  as  to  such  property  it  is  believed 
there  is  no  actual  conflict,  as  the  State  of  the  domicile  of  the 
deceased  does  not  attempt  to  draw  such  property  under  its 
taxation  laws.  But  where  the  personalty  is  intangible,  for 
instance  a  debt  owing  the  deceased  by  one  domiciled  in  the 
ancillary  jurisdiction,  or  shares  of  stock  in  a  corporation  existing 
under  its  laws,  there  is  often  a  sharp  clash  between  the  domicil- 
iary and  ancillary  jurisdiction.  Each  claims  that  the  situs  of 
such  chose  in  action  is  with  it:  thus  double  taxation  may,  and 
often  has,  resulted.  Says  Holmes,  J.,  in  Blackstone  v.  Miller:  ^ 
"  No  doubt  this  power  on  the  part  of  two  States  to  tax  on  dif- 
ferent and  more  or  less  inconsistent  principles  leads  to  some 
hardship.  It  may  be  regretted,  also,  that  one  and  the  same 
State  should  be  seen  taxing  on  the  one  hand  according  to  the 
fact  of  power,  and  on  the  other,  and  at  the  same  time,  accord- 
ing to  the  fiction  that  in  succession  after  death  mobilia  sequuntur 
personam  and  domicile  governs  the  whole.  But  these  incon- 
sistencies infringe  no  rule  of  constitutional  law."  The  conflict 
is  limited  to  the  domicile  of  debtor  and  creditor.  The  mere 
physical  presence  in  a  sovereignty  of  the  evidence  of  a  chose  in 
action  belonging  to  a  deceased  will  not  uphold  its  taxation  there. 
Thus  the  notes  made  in  Ohio  and  there  payable  belonging  to 
the  estate  of  one  who  died  domiciled  in  New  York  could  not  be 
taxed  in  Indiana,  merely  because  they  were  in  the  hands  of 
an  agent  of  the  deceased  domiciled  there.^ 

1  Blackstone  v.  MUler,  188  U.  S.  189. 
«  Buck  V.  Beach,  206  U.  S.  392. 


§320]         DUTIES   OF   EXECUTORS  AXD   ADMINISTRATORS.  277 

Within  the  sovereignty  the  place  (county)  of  assessment  may 
be  involved  in  doubt.  The  authorities  are  somewhat  divided 
on  the  proposition  whether  the  personal  property  of  the  dece- 
dent should  be  taxed  at  the  place  of  the  domicile  of  the 
decedent,  as  is  held  in  some  States,  or,  as  seems  to  be  the  more 
general  rule,  in  the  county  where  the  executor  or  adminis- 
trator resides. 

§  320.  The  Succession  Tax.  —  Of  growing  importance  in  re- 
cent years  is  the  subject  of  succession  or  inlieritance  taxes, 
which  many  or  most  of  the  States  have  provided  for  by  statute. 
On  several  occasions  similar  laws  have  been  enacted  by  Con- 
gress, but  later  repealed.  The  constitutionality  of  these  laws, 
both  under  congressional  and  State  enactments,  has  been  chal- 
lenged in  many  cases  and  in  several  instances  the  respective 
acts  were  held  void  on  various  grounds. 

But  the  current  of  authorities  has  \'indicated  this  species  of 
taxation  beyond  serious  question  of  its  validity  when  the  acts 
imposing  it  are  diawn  without  violating  technical  constitutional 
requirements. 

The  inheritance  tax  is  not  upon  the  property  or  estate  of  the 
deceased,  but  upon  the  right  of  the  beneficiary  to  take  by  suc- 
cession.^ The  property  upon  which  the  State  tax  may  be  made 
payable  includes  all  such  real  and  personal  estate,  situate  in 
the  State  where  the  administration  is  had,  as  passes  from  the 
deceased  testator  or  intestate  to  the  beneficiaries,  whether  under 
a  will  or  the  Statute  of  Descents  and  Distributions.  The  tax 
may  be  imposed,  whether  the  beneficiary  resides  in  the  State 
or  in  a  foreign  jurisdiction;  or  even  against  non-residents  alone. 
The  personal  property  of  a  deceased  resident  is  subject  to  ap- 
praisement for  taxation  though  it  be  situated  in  a  foreign  jm-is- 
diction,  if  it  is  not  needed  to  satisfy  local  indebtedness  there; 
but  real  estate,  not  being  draTvn  to  the  domicile  of  the  owner 
for  taxation,  or  any  other  purpose,  the  imposition  of  a  tax  upon 
it  in  another  State  transcends  legislative  power  and  cannot  be 
enforced. 

The  personal  property  of  non-residents  is  subject  to  the  tax, 
notwithstanding  the  maxim  that  personal  property  follows  the 
owner's  domicile  (which,  it  has  been  said,  does  not  apply  to 
1  Plumber  v.  Coler,  178  U.  S.  115. 


278  THE  LAW   OF  DECEDENTS'   ESTATES.  [§  320 

questions  of  revenue);  but  only  if  the  property  is  regarded  as 
having  a  situs  in  the  taxing  State  apart  from  its  owner.^ 

Property,  though  exempt  by  the  general  law  from  taxation, 
such  as  government  bonds  or  similar  securities,  life  insurance, 
orphan  asylums,  and  other  charitable  institutions,  are  never- 
theless liable  to  the  inheritance  tax,  unless  exempted  by  the 
statute  imposing  the  tax. 

Neither  the  United  States,  as  a  body  corporate  and  politic,  nor 
a  municipality  or  corporation,  is  exempt  from  the  succession  tax. 

By  the  terms  of  most  of  the  statutes  on  this  subject,  the 
duty  to  pay  the  legacy  or  inheritance  tax  is  imposed  upon  ex- 
ecutors and  administrators,  except  the  tax  on  real  estate  in 
States  in  which  no  title  or  right  of  possession  to  the  real  estate 
passes  to  them.  In  such  States  they  have  no  right  or  duty  in 
respect  of  the  real  estate,  and  have  not  the  right  to  pay  the 
tax  thereon  out  of  the  personalty.  It  is  the  duty  of  the  execu- 
tor or  administrator  to  deduct  the  amoimt  of  the  tax  out  of 
any  legacy  or  distributive  share  before  he  pays  out  the  same; 
and  if  the  legacy  or  property  be  not  money,  it  is  his  duty  to 
collect  the  same  from  the  person  entitled  to  the  legacy  or  prop- 
erty, before  he  delivers  it.  But  he  can  deduct  or  collect  only 
from  the  property  in  his  hands:  he  can  maintain  no  action 
against  the  legatee  for  the  recovery  of  the  tax  on  personal 
property.  While  the  legacy  or  succession  tax  subjects  the 
property  to  a  lien,  it  does  not  create  a  personal  liability  on  the 
part  of  the  legatee;  and  the  person  having  the  property  in 
charge  is  liable  only  as  pointed  out  by  statute;  if  demand  is 
provided  for,  there  is  no  liability  until  there  is  neglect  or  re- 
fusal to  pay  "after  demand." 

The  tax  on  property  other  than  money  is  determined  by  the 
appraisement  of  its  value.  Appraisers  appointed  under  the 
statute  imposing  the  inheritance  tax  are  required  to  appraise, 
not  the  estate  of  the  decedent,  but  the  estate  inherited  or  created 
by  will,  subject  to  the  tax. 

Property  should  be  assessed  at  its  fair  market  value,  —  its 
cash  value,  which  terms,  with  reference  to  the  appraisement  for 
taxation,  are  held  to  mean  the  same  thing.    Debts  of  the  de- 
ceased must  be  deducted;  the  tax  is  assessable  only  on  the  clear 
1  Bristol  V.  Washington  Co.,  177  U.  S.  133. 


§  321]        DUTIES   OF  EXECUTORS  AXD  ADMINISTRATORS.  279 

value,  which  means  the  surphis  after  paying  debts  and  legal 
charges  against  the  estate.  When  an  estate  for  hfe  or  years 
is  created,  its  value  is  ascertainable  at  once,  and  may  be  com- 
puted, if  a  life  estate,  by  the  life  or  mortality  tables  in  use  by 
the  court.  As  to  future  estates,  where  the  tax  is  payable  when 
the  legatee  or  distributee  becomes  "  beneficially  entitled  in  pos- 
session on  expectancy,"  as  it  is  under  the  statutes  of  most 
States,  these  words  are  construed  to  mean,  when  the  bene- 
ficiary is  entitled  to  the  possession  thereof.  In  the  language 
of  Judge  Finch,  "the  State  will  get  its  tax  when  the  legatees 
get  their  property'."  ^  So  under  the  last  Federal  inheritance 
tax  it  was  held  that  even  a  vested  remainder  was  not  taxable 
till  the  expiration  of  the  prior  estate  when  the  beneficiary  en- 
tered into  enjo^Tuent  of  the  property ,2  and  the  same  interpre- 
tation has  generally  been  given  to  the  statutes  of  the  States. 

Notice  must  be  given  of  the  appointment  of  appraisers,  so 
that  the  parties  interested  may  be  represented  in  the  proceeding. 

Gifts  causa  mortis  are  subject  to  the  inheritance  tax,  but  not 
gifts  inter  vivos. 

The  homestead  for  the  sur\'iving  family  of  the  deceased  and 
the  statutory  allowance  for  the  maintenance  of  the  -vs^dow  and 
family  are  held  not  to  pass  to  the  beneficiaries  by  inheritance 
or  devise,  but  directly  by  force  of  the  law,  and  hence  have 
been  excluded  from  the  operation  of  inheritance  and  succession 
taxes. 

§  321.  Transfer  of  Personalty  by  Personal  Representative  at 
Common  Law.  —  Since  the  legal  title  to  all  personal  property 
vests  in  the  executor  or  administrator  (which  title  he  however 
holds  as  quasi  trustee  for  parties  interested  in  the  estate),  as  a 
matter  of  common  laAv,  apart  from  statutes,  a  sale  or  conveyance 
by  the  personal  representative  passes  a  good  title  to  the  personal 
property  of  the  deceased.  The  rule  covers  a  negotiable  paper 
as  well  as  goods  and  chattels. 

So  the  assignment  of  a  mortgage  by  the  administrator  to  a 
third  person,  and  by  the  latter  as  part  of  the  transaction  back 
to  the  administrator,  is  good  as  between  the  parties  and  is 
attackable  by  the  next  of  kin  simply  on  the  ground  that  a 

1  Matter  of  Hoffman,  143  N.  Y.  327. 

2  Vanderbilt  v.  Eidman,  196  U.  S.  480. 


280  THE  LAW  OF  DECEDENTS'  ESTATES.         [§§  322,  323 

trustee's  purchase  of  trust  property  can  be  avoided  at  the  will 
of  the  beneficiary. 

If  the  personal  representative  misapplies  the  assets  received 
under  a  sale,  he  commits  a  devastavit,  and  parties  interested 
in  the  estate  must  look  to  him  and  the  sureties  on  his  official 
bond  for  indemnity.    The  transferee  takes  a  good  title. 

But  since  the  personal  representative  is  only  a  trustee,  so  far 
as  the  present  inquiry  is  concerned,  the  purchaser  can  be  held 
liable  on  behalf  of  beneficiaries  of  the  estate  whenever  the  per- 
sonal representative  abuses  liis  trust  as  in  similar  cases  under 
the  law  of  trusteeship.  If  a  purchaser  has  notice  of  a  dishonest 
purpose  on  the  part  of  the  administrator  to  misapply  the  funds 
or  property  of  the  estate,  the  vendee  is  hable  to  make  restitu- 
tion to  the  persons  entitled  to  the  estate.  Nor  can  the  admin- 
istrator make  a  valid  sale  or  pledge  of  the  assets  as  security 
for  or  in  payment  of  his  o^^^l  debts. 

§  322.  Restraint  on  Power  of  Sale  by  Statute.  —  But  this 
common-law  doctrine  is  inapplicable  in  many  of  the  American 
States  by  reason  of  the  provisions  in  the  statutes  of  most  of 
them,  according  to  which  neither  executors  nor  administrators 
are  permitted  to  sell  property,  unless  directed  in  the  will,  with- 
out an  order  of  court;  in  some  of  them,  the  statute  itself  de- 
clares all  sales  made  without  such  order  to  be  void.  And  it 
has  been  held  in  a  few  of  the  States,  that  the  power  of  the  pro- 
bate court  to  order  the  sale  of  personal  property  of  decedents' 
estates,  being  derived  solely  from  the  statute,  is  specific  and 
lunited,  and  that  therefore  an  order  of  sale  based  upon  a  peti- 
tion which  does  not  allege  or  show  the  existence  of  a  legal  cause 
for  the  sale  is  a  nullity,  as  the  court  has  no  jm-isdiction  to  make 
such  order.  In  several  States  the  statutes  declaring  that  the 
executor  or  administrator  must  procure  an  order  of  court  to 
sell  personalty  are  construed  to  affect  only  visible,  tangible 
personalty,  and  that  the  executor's  or  administrator's  rights 
concerning  the  alienation  of  choses  in  action  are  still  as  at 
common  law.^ 

§  323.    Sale  of  Perishable  Property.  —  The  personal  property 
of  an  estate  which  is  of  a  perishable  nature,  liable  to  loss,  waste, 
or  depreciation,  should  be  sold  as  soon  after  taking  charge  of 
1  For  details,  see  Woemer  on  Administration,  §  331. 


§  324]        DUTIES  OF  EXECUTORS  AND  ADMINISTRATORS.  2S1 

the  same  as  reasonable  diligence  and  compliance  with  the  stat- 
utory requirements  will  render  feasible.  The  statutes  of  all  the 
States,  with  the  exception  of  only  one  or  two,  enjoin  the  early 
sale  of  perishable  property  as  a  duty  upon  executors  and  admin- 
istrators; in  some  of  them  the  directions  are  very  elaborate  and 
minute,  in  all  of  them  sufficiently  full  to  enable  executors  and 
administrators  to  proceed  without  incurring  any  risk  or  lia- 
bility on  the  score  of  ignorance  of  the  law.  In  general,  an  order 
of  the  probate  court  for  the  sale  is  requisite,  based  upon  a 
motion  or  petition  of  the  executor;  but  such  petition  is  not  re- 
quired to  set  forth  the  jurisdictional  facts  in  acciu-ate  or  tech- 
nical language.  If  the  administrator  neglect  to  obtain  such 
order  in  due  time,  he  will  be  personally  liable  for  any  expenses 
growing  out  of  the  delay,  as  well  as  for  the  loss  of  the  property 
or  its  depreciation  in  value.  If  the  administrator  acts  in  good 
faith  for  the  best  interest,  in  his  opinion,  of  the  estate,  without 
violating  the  direct  provision  of  the  statute  or  order  of  the  court 
having  jurisdiction,  and  permits  property  to  remain  unsold 
which  is  not  likely  to  depreciate  in  value,  he  will  not  be  held 
responsible  for  an  unforeseen  loss  arising. 

§  324.  Method  and  Notice  of  Sale.  —  After  mention  of  the 
special  case  of  perishable  property,  it  is  to  be  noted  that  the 
statutes  usually  contain  full  provisions  for  the  sale  of  all.  per- 
sonalty. These  sales  in  the  American  States  are  generally  re- 
quired to  be  public,  to  the  highest  bidder,  unless  for  good  cause 
shown,  the  court  authorize  a  private  sale.  In  some  States 
private  sales  are,  or  at  least  were,  interdicted  entirely.  In  most 
States,  however,  an  order  to  sell  at  private  sale  may  be  obtained 
from  the  probate  court  upon  application  and  proof  that  the 
interest  of  the  estate  would  thereby  be  enhanced  or  protected. 
The  statutes  require  full  notice  to  be  given  of  all  public  sales, 
generally  prescribing  the  time  and  manner  thereof,  the  mini- 
mum of  time  varying  between  ten  days  and  four  weeks,  and 
the  mode  being  publication  in  some  newspaper,  or  posting  the 
notice  in  a  number  of  public  places,  or  both;  and  in  several 
States  both  the  time  and  manner  of  the  notice  are  to  be  deter- 
mined by  the  order  of  the  court.^ 

1  The  rule  in  different  States  is  laid  down  in  Woeraer  on  Administration, 
§332. 


282  THE  LAW   OF  DECEDENTS'   ESTATES.  [§325 

§  325.  Terms  and  Method  of  Payment.  —  The  terms  of  sale, 
when  not  fixed  by  statute,  are  generally  left  to  the  discretion  of 
the  administrator,  or  made  part  of  the  order  directing  the  sale. 
In  most  cases  the  statute  fixes  a  maximum  beyond  which  credit 
is  not  allowed  to  be  given,  generally  twelve  months.  An  ad- 
ministrator has  no  right  to  alter  the  terms  of  an  order  of  sale; 
but  if  he  does,  the  irregularity  is  cured  if  the  court  approve  the 
sale,  upon  a  report  reciting  the  terms  upon  which  the  sale  was 
had. 

Security  for  the  purchase-money  must  be  taken  by  the  ex- 
ecutor or  administrator  in  making  sales  on  credit.  If  the  ad- 
ministrator neglect  to  take  such  security  as  the  statute  requires 
or  the  order  of  court  prescribes,  he  becomes  liable  to  the  estate 
on  his  bond  for  the  amount  of  such  purchase-money,  whether 
he  recovers  from  the  purchaser  or  not.  And  so  if  he  neglect  to 
make  demand  of,  or  bring  action  against,  the  sureties.  But 
the  omission  to  take  security  does  not  vitiate  the  sale.  If  the 
security  taken  was  good,  and  in  accordance  with  the  statute 
or  order  of  the  court  at  the  time  it  was  taken,  a  subsequent  fail- 
ure or  insolvency  of  the  sureties  will  not  render  the  adminis- 
trator liable,  but  the  loss  will  fall  on  the  estate. 

The  price  for  which  property  of  an  estate  is  sold  is  not  due  to 
the  administrator  in  his  individual  capacity,  but  to  the  estate. 
The  object  of  the  sale  is  to  convert  the  property  of  the  estate 
into  cash  for  the  purposes  of  administration,  and  when  so  con- 
verted it  constitutes  assets  of  the  estate  in  place  of  the  property 
sold.  Hence  a  creditor  of  the  estate  cannot  deduct  from  the 
price  of  the  property  sold  to  him  by  the  administrator  the 
amount  of  his  demand  against  the  estate,  unless  his  claim  has 
been  adjudicated,  and  the  amount  to  which  he  is  entitled  from 
the  estate  ascertained,  in  which  case  the  smaller  sum  may  be 
deducted  from  the  larger.  When  an  administrator  has  sold  on 
credit,  he  may  nevertheless  receive  payment  at  once,  since  to 
convert  into  cash  is  the  paramount  object  of  the  sale.  If  he 
takes  a  note  payable  to  himself,  he  is  liable  for  the  amount 
thereof  to  the  estate,  as  for  devastavit,  but  the  contract  is  valid 
between  the  parties,  and  the  maker  cannot  set  off  against  it 
a  claim  purchased  by  him  against  the  estate.  And  if  the  ad- 
ministrator, without  sanction  of  the  court,  receive,  in  satis- 


§§  326-32S]    DUTIES   OF  EXECUTORS  AND   ADMINISTRATORS.     2S3 

faction  of  a  debt  due  the  estate,  an  assignment  of  a  claim  against 
a  third  person,  he  becomes  Hable  for  the  debt  personally. 

§  328.  Purchase  of  Personalty  by  the  Exacutor  or  Administrator 
himself.  —  It  is  an  ancient  and  very  familiar  doctrine,  that  the 
sale  by  an  executor  or  administrator  of  property  of  the  estate 
to  himself,  either  directly  or  indirectly,  whether  at  private  sale 
or  public  auction,  no  matter  how  honest,  open,  and  fair,  may 
be  avoided  at  the  option  of  the  beneficial  owner,  or  cestui  que 
trust. 

This  doctrine  applies  not  only  to  personal  property  of  the 
estate,  but  applies  equally  to  real  estate  whenever  it  becomes 
necessary  to  sell  the  latter  in  course  of  the  administration.  In 
order  to  avoid  repetition  the  subject  of  the  purchase  by  the 
representative  at  his  own  sale  is  deferred  to  a  later  section.^ 

§  327.  Record  and  Report  of  the  Sale.  —  It  is,  in  most  States, 
made  the  duty  of  executors  and  administrators  to  employ  a 
sworn  clerk  to  keep  an  account  of  sales,  with  a  list  of  the  arti- 
cles sold,  their  price,  and  the  names  of  the  purchasers,  which 
they  must  report  to  and  file  in  the  court  of  probate  within  a 
given  time.  In  some  States  they  are  also  required  to  employ 
an  auctioneer  to  cry  the  articles.  It  is,  in  general,  a  wise  pre- 
caution to  report  all  private  as  well  as  public  sales  to  the  court, 
whether  made  under  the  order  of  the  court,  or  by  vu'tue  of 
statutory  provision,  or  by  direction  of  the  will,  or  in  pursuance 
of  the  common-law  right  to  do  so,  and  whether  such  report  is 
required  to  be  made  by  statute  or  not.  The  report  is  valuable 
as  informing  the  court  and  parties  in  interest  of  the  progress 
of  the  administration;  the  approval  of  the  transaction  by  the 
court  may  sometimes  afford  a  protection  to  the  administrator, 
and  in  any  event  affords  e\adence  which  may  be  decisive  in 
an  action,  and  often  prevent  litigation  altogether.  The  report 
should  be  confined  to  the  matter  of  sale  alone;  for  if  it  em- 
body other  matters  its  approval  may  mislead  as  to  its  effect 
upon  them,  the  judgment  being  final  with  regard  to  the  sale 
only. 

§  328.  Duties  in  Respect  to  the  Investment  and  Custody  of 
Funds.  —  The  probate  court  has  no  power  to  deprive  an  admin- 
istrator of  the  custody  of  the  assets  by  an  order  directing  him 

1  See  post,  §  487. 


284  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  328 

where  and  how  he  shall  keep  them.  But  executors  and  admin- 
istrators should  preserve  the  property  of  the  estates  intrusted 
to  them  separate  and  apart  from  their  own,  to  give  it  an  ear- 
mark, so  that  it  may  always  be  known  and  readily  traced.  The 
violation  of  this  duty  is  a  breach  of  trust,  which  often  entails 
pernicious  consequences  upon  the  executor  or  administrator, 
although  acting  in  perfect  good  faith.  If  he  deposit  the  money 
in  bank,  together  with  money  of  his  own,  so  that  he  may  draw 
against  the  common  fund  in  his  own  name,  or  in  any  manner 
mingle  it  with  his  own,  this  amounts  to  a  conversion  of  the 
estate's  money  to  his  own  use;  the  loss  of  the  fund  under  such 
circumstances  by  failure  of  the  bank  or  otherwise  must  be  borne 
by  him,  even  if  he  had  no  other  funds  in  such  bank,  and  in- 
formed the  officers  at  the  time  that  the  funds  were  held  in  trust, 
and  although  deposited  with  the  intention  to  keep  it  there  to 
repay  the  amount  of  trust  funds  used  by  him.  Nor  should  the 
executor  or  administrator  employ  the  assets  of  the  estate  in 
his  own  business,  or  in  speculations  on  liis  o\vn  account.  This 
would  constitute  a  clear  breach  of  trust,  and  is  in  some  States 
made  felony  by  statute.  For  property  tortiously  converted, 
he  is  liable  at  its  highest  value.  An  executor  or  administrator, 
like  a  guardian  or  other  trustee,  is  not  allowed  to  reap  any  gain, 
profit,  or  advantage  from  the  use  of  the  trust  fund. 

Funds  in  the  hands  of  executors  or  administrators,  which 
are  not  immediately  or  within  a  short  period  applicable  to  the 
payment  of  debts  or  expenses  of  administration,  should  be  in- 
vested so  as  to  produce  interest  for  the  estate.  Provisions  re- 
quiring such  investment  are  found  in  the  statutes  of  many 
States;  and  even  in  the  absence  thereof  it  is  the  duty  of  execu- 
tors and  administrators,  as  of  all  trustees  having  funds  in 
custody  which  are  not  payable  to  the  beneficiaries  until  after 
the  expiration  of  a  considerable  time,  to  make  them  productive 
by  investment  on  safe  security.  Where  the  statute  directs  the 
method  of  investment,  it  is  obvious  that  a  compliance  with  its 
pro\dsions  will  protect  the  executor  or  administrator  against  any 
liability,  although  the  fund  may  be  lost.  On  the  other  hand,  if 
the  statute  is  not  complied  with,  the  executor  or  administrator 
is  liable  to  the  estate  for  any  loss,  no  matter  how  honestly  he 
may  have  intended,  or  how  vigilant  his  conduct  may  have  been. 


§  32S]         DUTIES   OF   EXECUTORS  AND   .^MIXISTRATORS.  285 

The  statutes  are,  in  some  instances,  highly  penal,  and  are 
rigidly  enforced. 

In  the  absence  of  statutory  provision  touching  the  method 
of  investment,  executors  and  administrators  are  bound  to  em- 
ploy, in  the  investment  of  the  funds  of  the  estate,  such  prudence 
and  diligence  as  in  general  prudent  men  of  discretion  and  intel- 
ligence employ  in  their  own  affairs.  He  must  act  strictly  within 
the  line  of  his  duty,  whether  indicated  by  the  statute,  or  by  the 
instruction  of  the  court,  if  there  be  any  such  given  by  a  court 
having  jurisdiction,  or  by  the  provisions  of  a  will;  for  any  loss 
arising  out  of  any  deviation  therefrom,  although  in  perfect 
good  faith  and  with  the  best  intention,  he  is  liable.  If  he  omits 
to  observe  the  direction  of  the  will  touching  the  investment  of 
the  money,  he  will  be  liable  for  such  interest  as  the  investment 
directed  in  the  will  would  have  produced.  It  has  been  held  that, 
where  the  will  directs  a  legacy  to  be  put  at  interest,  the  purchase 
by  the  executor  of  bank  stock  is  not  in  compliance  therewith. 

But  acting  in  good  faith  within  the  requirements  of  the  law, 
executors  and  administrators  mil  be  treated  by  the  courts  v/ ith 
liberality  and  tenderness;  they  will  not  be  held  responsible  for 
losses  in  the  absence  of  wilful  misconduct  or  fraud,  especially 
when  acting  under  advice  of  counsel.  The  executor  or  admin- 
istrator will  not,  in  such  case,  be  held  responsible  for  losses  oc- 
casioned by  mere  error  of  judgment.  And  where  he  has  acted 
with  what  men  of  sense  and  experience  would  deem  reasonable 
discretion  in  their  own  affairs,  his  acts  or  omissions  in  good  faith 
will  not  render  him  liable  for  losses  arising  in  consequence, 
especially  during  a  period  of  doubts  and  difficulties.  He  is 
not  to  be  held  liable  as  an  insurer  of  the  estate. 

Executors  and  administrators  are  liable  for  all  losses  arising 
to  the  estate  out  of  their  acts  in  bad  faith  or  negligence.  It 
is  negligence  to  loan  money  of  the  estate  without  taking  security, 
although  done  in  perfectly  good  faith,  and  though  lent  to  a  bor- 
rower who  was  amply  solvent  at  the  time  of  the  loan ;  so  where 
the  security  taken  Is  insufficient.  Personal  security  is  held  in- 
sufficient; and  even  in  lending  money  on  mortgage  of  real  estate, 
a  degree  of  care  is  necessary,  which,  if  omitted,  will  render  the 
executor  liable  personally.  He  is  bound  to  use  ordinary  care 
to  ascertain  that  the  title  of  the  mortgage  is  valid,  and  that  the 


286  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  32S 

property  at  the  time  of  the  loan  is  such  as  will  be  an  adequate 
security  for  the  repayment  of  the  loan  and  interest  when  it  shall 
be  called  in.  The  criterion  of  value  in  such  case  is  the  estimate 
of  men  of  ordinary  prudence,  who  would  deem  it  safe  to  make  a 
loan  of  like  amount  of  their  own  money  on  the  same  property; 
and  the  only  safe  practical  rule  lias  been  held  to  be  not  to  lend 
more  than  from  one-half  to  two-thirds  of  the  value  of  the  mort- 
gaged property,  estimated  at  what  it  would  bring  at  a  forced 
sale.  Nor  should  a  loan  on  real  estate  be  made  on  other  than  a 
first  deed  of  trust  or  first  mortgage.  It  has  also  been  held  neg- 
ligence to  invest  funds  in  municipal  bonds,  or  bank  stocks,  or 
stocks  of  private  corporations,  at  least  if  made  without  an  order 
of  court.  Government  bonds  and  real  estate  securities  are 
held  to  be  the  only  safe  investments  recognized  by  courts. 

Where  investments  made  by  a  testator  or  intestate  come  into 
the  hands  of  the  executor  or  administrator,  he  is  required,  in 
determining  whether  to  sell  such  stock,  to  act  in  good  faith, 
and  exercise  a  sound  discretion.  Although  by  the  light  of  sub- 
sequent events  the  course  determined  on  may  appear  unwise, 
he  cannot  be  held  liable  for  any  losses  or  depreciation  of  the 
stock,  unless  it  be  found  that  he  acted  carelessly  or  in  bad  faith. 
If  the  testator  has  given  no  directions  in  the  will,  the  ordinary 
rules  of  prudence  and  diligence  apply,  and  the  fact  that  he  has 
invested  his  property  in  particular  stocks,  shares  of  corporations, 
mortgages,  or  other  securities,  will  go  far  to  justify  his  executor 
in  continuing  them. 

The  general  drift  of  authority  and  considerations  relating  to 
the  safety  of  trust  funds  seem  to  indicate  that  an  executor  or 
testamentary  trustee  should  not  invest  the  funds  in  his  custody 
in  mortgages  upon  real  estate  situate  outside  of  the  State,  ex- 
cept in  rare  and  exceptional  cases,  under  unusual  and  peculiar 
circumstances.  Mortgages  taken  upon  lands  of  the  estate  sold, 
although  situate  in  another  State,  are  among  the  exceptions. 

It  has  already  been  mentioned,  that  where  an  executor  or 
administrator  deposits  money  in  bank  in  his  own  name,  he 
thereby  makes  himself  responsible  for  all  losses  by  the  failure 
of  the  bank. 

Money  may  sometimes  be  lawfully  loaned  to  a  devisee  on 
the  security  of  his  interest  in  the  estate. 


329]  THE  MANAGEMENT   OF  THE   REAL   PROPERTY.  287 


CHAPTER  XXXVI. 

OF  THE  MANAGEMENT   OF  THE   REAL   PROPERTY. 

§  329.  Probate  Control  over  Realty  at  Common  Law  and 
under  Statutes.  —  At  common  law  the  real  estate  of  a  de- 
ceased person  goes  directly  to  the  heir  or  devisee  without  passing 
through  the  custody  of  the  executor  or  administrator.  But  it 
must  also  be  remembered  that  a  testator's  will  can  give  title 
to  trustees,  and  even  give  powers  to  executors  and  administra- 
tors without  title.  Such  authority  of  the  personal  representative 
under  the  will  over  the  realty  is  recognized  at  common  law. 
Before  touching  the  questions  arising  out  of  the  exercise  of  tes- 
tamentary power  over  realty,  and  indeed  as  preliminary  to  the 
discussion  of  these  matters,  the  statutory  rules  giving  the  per- 
sonal representative  authority  over  realty  independent  of  any 
powers  in  the  will  must  be  considered. 

The  common-law  rule  that  the  personal  representative  has 
no  concern  with  the  realty  of  the  deceased  has  been  changed 
by  statute  in  every  State  in  the  Union.  Realty  is  everywhere 
subject  to  the  payment  of  debts  of  the  deceased  under  juris- 
diction of  the  probate  courts.  But  in  determining  the  powers 
of  the  personal  representative  over  realty,  it  must  be  remem- 
bered that  the  common-law  rule  has  not  been  wholly  abolished: 
the  varying  statutory  provisions  must  be  read  in  the  light  of 
that  rule. 

The  statutory  provisions  looking  toward  control  of  the  realty 
in  administration  vary  greatly  as  between  the  States,  but  may 
be  grouped  in  three  classes,  based  on  the  basic  idea  of  the  re- 
spective legislation. 

I.  A  few  States  approximate,  without  fully  effectuating,  the 
idea  that  there  should  be  no  distinction  between  realty  and 
personalty:  that  the  personal  representative  takes  charge  of 
the  realty,  as  he  does  at  common  law  of  the  personalty. 


238  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  330 

II.  Another  group  of  States,  more  numerous,  gives  no  direct 
right  or  title  to  the  personal  representative,  but  does  give  him 
a  power  under  certain  contingencies  (generally  in  interest  of 
the  creditors  of  the  deceased)  to  take  the  property,  and  ulti- 
mately sell  it,  if  necessary.  In  these  States  the  personal  rep- 
resentative gets  his  power  from  the  statute:  he  does  not  need 
an  order  of  probate  court  to  enable  him  to  act. 

III.  In  most  States,  however,  the  personal  representative 
can  only  act  on  an  order  of  the  probate  court,  obtained  as  pro- 
vided for  in  the  statutes. 

It  is  not  claimed  that  every  State  falls  absolutely  into  one  of 
these  three  classes.  There  is  much  patchwork  in  the  legisla- 
tion. The  classification,  however,  seems  not  only  sound,  but 
practically  adequate. 

§  330.  I.  The  Common  Law  almost  wholly  abrogated.  —  In 
this  first  class  of  States  the  right  to  the  possession  of  the  real 
estate  until  the  administration  is  closed,  or  rather  until  distri- 
bution made,  is  solely  with  the  representative,  whether  the 
estate  be  solvent  or  not,  and  he  may  without  joining  the  heirs 
or  devisees  bring  ejectment  and  unlawful  detainer  against  third 
persons,  or  even  against  the  heirs  or  devisees.  Nor  can  the 
latter  (unless  the  statute  provide  otherwise,  as  it  does  in  most 
of  them)  maintain  an  action  to  quiet  title  or  in  ejectment  against 
third  parties  before  distribution  and  during  the  administration, 
though  there  be  a  vacancy  in  the  office  of  executor  or  admin- 
istrator, and  in  foreclosing  a  mortgage  against  an  administrator 
the  heirs  of  the  deceased  mortgagor  need  not  be  made  parties, 
while,  on  the  other  hand,  the  administrator  is  an  indispensable 
part}'.  In  these  States  the  representative  is  in  privity  w^th 
and  represents  the  owner  of  the  realty;  hence  judgment  in 
ejectment  for  or  against  him  has  been  held  an  estoppel  for  or 
against  the  heir  or  devisee;  and  so  in  other  suits  affecting  the 
title  to  the  realty  the  heir  is  concluded  by  the  judgment  against 
the  administrator.  For  the  same  reason  where  the  executor 
or  administrator  neglects  to  bring  an  action  until  it  is  barred 
by  the  Statute  of  Limitations,  the  devisee  or  heir  is  also  barred, 

1  The  list  of  States  belonging  to  the  three  classes  above  naentioned, 
numerous  authorities,  and  further  detail,  appear  in  Woemer  on  Admin- 
istration, §§  337  and  338. 


§  331]  THE  MANAGEMENT  OF  THE  REAL  PROPERTY.  289 

even  though  he  was  a  minor  and  under  disability  when  the 
cause  of  action  accrued  to  the  representative;  the  remedy  in 
such  case  is  against  the  representative  on  his  bond. 

But  even  in  these  States  the  heirs  and  devisees  have  an  in- 
terest in  the  realty  such  as  they  would  not  have  in  personalty, 
as  illustrated  by  the  holdings  that  they  can  sell  the  realty  sub- 
ject to  debts  of  the  deceased,  and  can  maintain  ejectment 
where  there  has  been  no  administration. 

§  331.  II.  States  giving  Statutory  Powers  to  the  Personal  Rep- 
resentative. —  In  these  States  the  title  not  only  vests  in  the  heir 
or  devisee,  but  the  statutes  are  construed  as  giving  him  the 
right  to  assert  it  with  all  its  common-law  rights  and  incidents 
until  the  personal  representative  effectually  exerts  the  power 
reposed  in  him  by  statute.  Hence,  until  the  executor  or  ad- 
ministrator assert  his  possessory  right,  the  heirs  or  devisees 
may  sue  for  rent,  or  in  ejectment,  or  maintain  action  for  injuries 
to  the  realty  after  the  decedent's  death,  and,  conversely,  the 
executor  or  administrator  cannot  do  so.  The  personal  repre- 
sentative does  not  represent  the  heir,  and  during  such  time 
limitation  runs  against  the  heir  in  favor  of  third  parties  in 
possession.  But  when  he  has  properly  asserted  his  right  to 
the  possession,  he  may  maintain  possessory  actions  in  his  own 
name,  even  against  the  heirs  or  devisees,  or  recover  the  rents, 
income,  or  profits,  or  for  any  injury  to  the  land  or  anything 
severed  from  it,  or  for  injuries  committed  before  he  took  pos- 
session and  after  decedent's  death,  or  maintain  an  action  to 
enjoin  third  persons  from  committing  waste. 

The  power  of  the  personal  representative  in  respect  of  the 
real  estate  in  these  States  is,  however,  a  mere  statutory  power, 
given  only  for  the  benefit  of  creditors,  and  properly  to  be  ex- 
ercised only  when  the  exigencies  of  the  estate  require;  hence 
it  is  said  that,  where  there  are  no  debts  or  legacies  to  be 
paid,  or  where  it  appears  that  the  personalty  is  sufficient  for 
that  purpose,  there  is  no  valid  reason  why  the  executor  or 
administrator  should  have  the  possession  of  the  real  estate, 
and  where  in  such  case  the  property  has  passed  into  the  pos- 
session of  the  devisees,  he  has  no  longer  any  right  thereto. 
The  right  to  the  possession  ceases  when  the  estate  is  settled; 
hence  a  lease  for  a  longer  period  than  that  during  which  the 


290  THE   LAW   OF  DECEDENTS'   ESTATES.         [§§  332,  333 

administration   continues  is  voidable  at  the   election  of  the 
heirs. 

§  332.  III.  Power  over  Realty  through  Probate  Court.  —  In  all 
States  which  have  not  adopted  the  principles  set  forth  in  the 
two  preceding  sections  the  executor  or  administrator  is  not 
entitled  nor  bound  to  take  charge  of,  nor  in  any  wise  to  inter- 
fere with  or  protect,  the  real  estate  of  his  testator  or  intestate, 
until  he  is  ordered  to  do  so  by  the  probate  court,  for  the  pur- 
pose of  selling  or  leasing  it  to  enable  him  to  pay  debts  or  legacies. 
If  the  personal  property  is  insufficient  for  such  purpose,  the 
real  estate  becomes  assets,  by  force  of  statutes  in  all  the  States, 
in  the  hands  of  the  personal  representative.  Hence  his  interest 
in  the  real  estate  before  the  contingency  has  arisen  which  makes 
it  assets  in  his  hands  is  that  of  a  naked  power  to  sell  upon  the 
happening  of  the  contingency;  the  title  and  its  defence,  the 
rents  and  profits,  the  possession  and  all  the  rights  and  duties 
following  from  o^^^le^ship,  belong  to  the  heirs  and  devisees 
until  they  are  divested  by  decree  or  order  of  the  probate  court. 
It  follows,  that  in  the  absence  of  an  order  of  the  probate  com-t 
to  take  charge  of  the  real  estate,  neither  an  executor  nor  an 
administrator  can  be  called  to  accomit  by  creditors  for  the 
value,  rents,  or  profits  of  real  estate,  unless  power  be  given  in 
the  will  to  sell,  lease,  or  otherwise  take  charge  of  it. 

The  exercise  of  this  probate  authority  over  realty  is  reserved 
for  future  discussion. 

§  333.  Power  over  Real  Estate  conferred  by  Will.  —  It  has  al- 
ready been  shown,  that  a  testator  may  confer  upon  his  executor 
or  executors  the  control  over  his  real  estate  to  the  same  extent 
to  which  the  law  invests  them  with  power  over  the  personalty, 
either  by  vesting  in  them  the  title  by  devise,  or  a  naked  power 
to  do  what  he  directs  for  the  purpose  of  carrying  out  his  will. 
Apart  from  statutes,  powers  over  realty,  whether  given  to 
executors  or  to  others,  are  strictly  construed  in  England  and  a 
few  American  States.  Thus  the  common-law  rule  does  not 
permit  the  exercise  of  a  naked  power  by  one  of  several  to  whom 
it  is  granted:  they  must  all  join  in  the  act.  Hence  if  one  of 
several  donees  of  a  power  die  before  executing  it,  or  refuse  to 
act,  the  power  must  fail.  By  statute,  and  under  decisions, 
however,  the  rule  of  strict  construction  as  to  powers  has  every- 


§  333]  THE   MANAGEMENT   OF  THE   REAL   PROPERTY.  291 

where  been  modified,  and  an  interpretation  adopted  which 
makes  the  effectuation  of  the  purpose  of  the  donor  of  the  power 
the  leading  consideration. 

Where  such  power  over  land  is  created  by  a  will,  the  question 
will  arise  whether  the  power  is  personal  in  the  donee  named, 
or  whether  it  attaches  to  the  office  of  executor.  If  the  power 
is  annexed  to  the  office,  it  follows  it,  so  that  whoever  administers 
the  estate  is  also  bound  to  execute  such  power,  whether  it  be 
the  executor  or  executors  nominated  in  the  will,  or  any  smaller 
number  of  them,  or  an  administrator  with  the  will  annexed. 
If  the  power  is  in  the  individual,  not  the  official,  it  does  not 
follow  the  office. 

If  the  testator  has  not  clearly  indicated  the  person  charged 
with  the  execution  of  the  power,  and  the  question  arises  whether 
the  person  administering  is  authorized  to  execute  the  same,  it 
will  be  generally  sufficient  to  ascertain  whether  the  proceeds 
of  a  sale,  or  other  fruit  of  the  exercise  of  the  power,  are  distrib- 
utable by  the  executor  or  administrator :  in  such  case  the  power 
is  in  him  by  implication,  and  will  go  to  any  personal  representa- 
tive upon  whom  the  administration  may  devolve.  But  where 
the  power  is  not  clearly  vested  in  the  person  administering, 
and  the  purpose  of  the  power  is  to  accomplish  something  be- 
yond the  scope  of  the  powers  or  functions  of  executors  or 
administrators  under  the  law,  it  cannot  be  exercised  by  the 
executor  or  administrator. 

The  augmentation  of  the  powers  of  probate  courts  in  this 
country,  enabling  them,  for  the  purpose  of  pajdng  the  debts 
and  legacies  of  deceased  persons  and  regulating  the  devolution 
of  their  property,  to  deal  with  the  real  assets  of  estates  as  readily 
as  with  the  personalt}^  has  tended  greatly  to  lessen  the  diffi- 
culty of  distinguishing  between  powers  constituting  a  personal 
trust  and  those  annexed  to  the  office  of  executor  or  adminis- 
trator, and  the  differences  in  the  adjudications  seem  to  affect 
only  details.  As  a  general  rule,  whenever  it  becomes  neces- 
sary to  convert  the  real  estate  of  a  decedent  into  money,  in 
order  to  raise  funds  for  the  payment  of  debts  or  legacies,  it 
becomes  the  duty  of  the  personal  representative  to  act  in  this 
respect:  under  power  in  the  will,  if  such  be  given;  or  under 
order  of  the  probate  court,  if  not,  or  if  the  power  granted  be 


292  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  334 

inadequate,  or  if  the  executor  or  administrator  neglect  to  act 
under  it.  The  rule,  that  the  power  to  sell  land  does  not  exist 
in  the  executor  unless  he  is  directed  to  do  so  by  the  will,  either 
ex-pressly  or  by  implication,  is  fully  recognized;  but  it  is  not 
controverted  in  any  of  the  States,  that  if  the  executor  is  directed 
l)y  the  will  or  bound  by  the  law  to  see  the  application  of  the 
proceeds  of  the  sale,  —  or  if  the  proceeds,  in  the  disposition  of 
them,  are  mixed  up  and  blended  with  the  personalty,  which  it 
is  the  duty  of  the  executor  to  dispose  of  and  pay  over,  —  the 
power  of  sale  is  conferred  on  him  by  implication,  because  with- 
out the  exercise  of  such  power  he  could  not  execute  the  will. 
Thus,  where  the  object  of  the  power  is  to  mix  together  realty 
and  personalty  in  a  common  fund,  out  of  which  the  various 
pm'poses  of  the  wdll  are  to  be  satisfied,  including  that  of  the 
payment  of  debts,  the  power  is  annexed  to  the  office  of  execu- 
tors, and  will  survive  to  any  of  a  greater  number  named  as 
donees  of  the  power  and  executors;  and  the  power  will  be 
extinguished  with  the  cessation  of  the  office.  Where  the  will 
imposes  upon  executors  the  duty  of  selling  real  estate,  without 
discretion,  the  power  follows  the  office;  otherwise  the  will  must 
fail,  if  the  executors,  or  any  of  them,  should  die  or  refuse  to 
act.  In  such  case,  the  direction  to  sell  works  a  constructive 
conversion  as  pointed  out  in  §  336. 

§  334.  Power  given  in  a  Will  not  following  the  Office  of  the 
Executor.  —  The  statement  of  the  rule  commented  on  in  the 
preceding  section  involves,  as  a  correlative  thereto,  that  where 
the  power  of  the  executor  to  sell  is  not  coupled  with  an  interest, 
and  the  direction  to  sell  is  not  peremptory,  but  referred  to  the 
discretion  of  such  executor,  the  power  is  a  personal  one,  and 
does  not  follow  the  office. 

It  is  also  to  be  observed  that  the  conveyance  of  a  power  to 
the  executor  of  the  will  does  not  necessarily  annex  such  power 
to  the  office;  it  may  be  that  the  word  "executor"  is  descriptio 
persons,  simply  employed  to  designate  the  donee  of  such  power 
in  trust,  instead  of  repeating  his  name;  and  if  such  appear  to 
be  the  testator's  intention,  —  where,  for'  instance,  the  power 
given  is  founded  in  the  personal  confidence  of  the  testator  in 
the  person  whom  he  nominates  as  executor  and  trustee,  — 
the  administrator  with  the  will  annexed  will  not  succeed  to  the 


§§  335,  336]       THE  MANAGEMENT   OF  THE  REAL  PROPERTY.     293 

same.  Hence,  one  named  as  executor  and  trustee  may  qualify 
as  executor  and  refuse  the  trust,  or  accept  the  trust  and  renounce 
as  executor;  but  where  the  trust  is  annexed  to  the  office  of 
executor,  the  executor,  if  he  quahfies  as  such,  thereby  accepts 
the  trust.  If  the  same  person  be  both  trustee  and  executor, 
the  probate  court  has  control  over  him  in  his  executorial  ca- 
pacity, but  has  no  jurisdiction  to  execute  the  trust,  which  must 
be  done  in  chancery. 

§  335.  Statutes  regulating  the  Power  over  Real  Estate  conferred 
by  Will.  —  Under  the  construction  put  in  England  on  the  Stat- 
ute 21  Hen.  VHI.  ch.  4,  where  part  of  the  executors  who  have 
the  power  refuse  the  office  and  the  residue  accept,  the  bargains 
and  sales  of  those  acting  are  good  in  law  as  if  joined  in  by  all 
the  appointees  of  the  power.  The  American  statutes  mostly 
extend  the  power  to  the  survivor  or  sur\ivors  of  several  execu- 
tors who  have  qualified,  of  whom  one  or  more  may  die,  resign, 
or  be  removed ;  as  well  as  to  one  or  more  who  may  qualify  of  a 
larger  number  to  whom  the  power  is  given,  of  whom  one  or  more 
may  refuse  to  act;  and  to  the  administrator  with  the  will 
annexed. 

A  discussion  of  the  variations  in  the  States  goes  beyond  the 
scope  of  this  treatise.^ 

§  336.  Constructive  or  Equitable  Conversion.  —  It  seems  most 
convenient  to  notice  in  this  connection  the  doctrine  wliich  im- 
presses upon  real  estate,  directed  by  a  testator  to  be  sold  for  the 
purpose  of  distributing  the  proceeds  to  the  persons  designated 
by  him,  the  character  of  personal  property,  and  upon  personal 
property  directed  to  be  converted  into  real,  the  character  of 
real  property.  The  rule  invoked  by  this  doctrine  is,  that  in 
equity  property  wdll  be  treated  as  being  already  what  the  tes- 
tator intended  it  to  become.  If  the  conversion  is  complete,  out 
and  out,  or  absolute  and  for  all  purposes,  it  operates  immediately 
upon  the  death  of  the  testator,  and  therefore  determines  the 
devolution  of  the  property  to  the  heir,  devisee,  or  executor,  — 
not  according  to  the  character  in  which  the  testator  has  left 
it,  but  according  to  that  into  which  he  has  directed  it  to  be 
converted;  and  the  rights  and  liabilities  of  those  interested  in 
it  attach  from  the  moment  of  the  testator's  death,  as  if  it  were 

^  For  a  more  extended  discussion  see  Woemer  on  Administration,  §  341. 


294  THE   LAW  OF  DECEDEXTS'  ESTATES.  [§336 

then  converted,  no  matter  when  the  actual  conversion  takes 
place.  Where  for  instance  an  executor  is  du*ected  to  sell  land 
and  divide  the  proceeds  among  aliens,  who  are  capable  of 
taking  personalty,  but  not  of  taking  realty,  these  aliens  take 
their  share  in  the  proceeds  of  the  sales,  the  land  being  treated 
as  personalty  at  the  testator's  death.^ 

But  since,  as  in  other  cases  of  testamentary  disposition,  the 
testator's  intention  must  govern,  if  it  can  be  ascertained  from 
his  language,  the  rule  is  equally  applicable  whether  there  be 
an  express  direction  to  convert,  or  whether  a  conversion  is 
necessarily  imphed.  There  must,  however,  be  no  doubt  of  the 
testator's  intention  to  convert;  and  this  intention,  whether  ex- 
pressed or  implied,  must  be  unconditional.  A  conditional  con- 
version is  not  within  the  scope  of  the  rule,  because  in  such  case 
there  is  no  constructive  conversion.  Thus,  if  the  testator  vest 
power  in  another  to  convert  or  not,  in  his  discretion,  or  directs 
the  conversion  upon  the  happening  of  a  contingency,  or  at  the 
election  of  a  person  or  persons  named,  it  is  clear  that  the  ques- 
tion of  conversion  must  depend  on  the  exercise  of  the  discre- 
tion, or  the  happening  of  the  contingency,  and  cannot  be  as- 
cribed solely  to  the  testator's  will.  In  such  cases  the  property 
devolves  in  the  shape  in  which  the  testator  left  it,  and  the  con- 
version takes  effect  upon  the  happening  of  the  contingency. 
It  should  be  remembered,  however,  that,  where  there  is  an 
imperative  direction  to  convert,  the  discretion  given  as  to  the 
time  of  sale,  or  the  mode  and  manner,  does  not  work  an  ex- 
ception to  the  rule;  but  if  the  conversion  is  postponed  to  a  future 
time  certain,  before  the  arrival  of  which  the  property  is,  ac- 
cording to  the  testator's  direction,  to  be  enjoyed  by  persons 
other  than  the  ultimate  beneficiaries,  there  is  of  course  no  con- 
version until  the  expiration  of  such  time. 

It  results  from  these  principles,  that  if  the  testator  intended 
the  conversion  for  certain  purposes  only,  the  conversion  is 
limited  to  these  purposes,  and  the  property  not  needed  for  their 
accomplishment  remains  unchanged  and  unaffected  by  the 
rule  of  conversion.  So,  if  the  purpose  of  the  testator  fails,  or 
cannot  be  accomplished,  there  is  no  conversion,  because  "  there 
is  an  end  of  the  disposition  when  there  is  an  end  of  the  purpose 
»  Greenwood  v.  Greenwood,  178  111.  387. 


§  337]  THE  JVLiNAGEMENT  OF  THE  REAL  PROPERTY.  295 

for  which  it  was  made,"  unless  the  testator  intended  to  stamp 
the  character  of  personalty  upon  realty,  or  vice  versa,  not  only 
for  the  purposes  of  the  will  but  for  all  purposes,  out  and  out. 

Where  a  conversion  is  directed,  but  the  proceeds  go  to  the 
same  persons,  in  the  same  proportions  who  would  take  if  there 
were  no  conversion,  they  may  elect  in  which  character  they  will 
take.  In  such  case  they  take  by  their  own  act,  as  upon  a  pur- 
chase, and  not  under  the  will.  But  all  the  beneficiaries  must 
acquiesce;  a  part  of  them  cannot  elect.  In  case  the  beneficiary 
be  an  infant,  a  court  of  equity  may  elect  for  him,  if  it  be  to  his 
interest,  but  his  guardian  or  trustee  cannot. 

It  may  be  proper  to  mention,  also,  that  real  estate,  although 
it  be  constructively  converted  into  personalty,  is  nevertheless 
subject  to  the  rules  of  law  governing  real  estate  generally,  in- 
asmuch as  it  is  taxable,  and  controllable  as  such,  and  can  only 
be  conveyed  as  such. 

§  337.  Duties  and  Liabilities  arising  to  Executors  and  Adminis- 
trators in  Respect  of  Real  Estate.  —  If  the  real  estate  of  a  de- 
cedent, in  the  absence  of  a  contrary  testamentary  disposition, 
and  when  not  needed  for  the  payment  of  debts,  passes  directly 
to  the  heirs  or  devisees,  it  is  as  much  beyond  the  authority  and 
duty  of  the  personal  representatives  as  if  it  had  not  been  the 
property  of  the  testator  or  intestate.  Wliere  the  executor  is 
given  by  the  will  a  naked  power  of  sale,  the  heir  or  devisee  is 
entitled  to  the  rents  and  profits  until  the  sale.  And  actions 
concerning  the  realty  should  be  brought  by  and  against  him 
and  not  the  personal  representative. 

The  duties  and  rights  of  executors  and  administrators  in 
respect  of  real  estate  lawfully  in  their  charge  —  whether  by 
force  of  testamentary  direction,  or  order  of  the  probate  court 
when  necessary  to  pay  debts,  or  coming  to  them  in  the  course 
of  administration  like  personal  property  constituting  assets  — 
are  the  same  as  if  it  were  personal  property  under  their  charge. 
They  are  entitled,  on  the  one  hand,  to  credit  for  all  expenses 
reasonably  incurred  in  its  protection  and  preservation,  and 
liable,  on  the  other,  for  all  losses  arising  out  of  negligence  in 
regard  thereto.  Thus,  it  is  the  administrator's  duty  to  restrain 
even  an  heir  from  trespassing  upon  real  estate  mortgaged  to  the 
intestate,  upon  which  the  administrator  has  obtained  judgment 


296  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  338 

of  foreclosure;  to  bring  an  action  against  a  disseisor  to  recover 
possession  thereof;  and  to  recover  damages  for  trespass  upon 
lands  of  which  he  has  taken  possession  as  administrator.  It 
Is  hardly  necessary  to  mention,  that  executors  vested  with 
power  to  sell  real  estate  are,  in  the  same  manner,  authorized  to 
do  all  that  Is  necessary'  in  the  way  of  insurance,  superintendence, 
repairs,  and  paying  taxes  for  the  preservation  of  the  estate. 

§  338.  Power  to  Mortgage  the  Real  Estate.  —  It  may  be  stated, 
as  a  general  proposition,  that  neither  executors,  unless  specially 
thereto  authorized  by  will,  nor  administrators  have  the  power 
to  bind  the  estate  of  the  deceased  by  borrowing  money.  Courts 
of  equity  have  authorized  the  mortgage  of  real  estate  to  raise 
money  for  the  pajTuent  of  debts  of  a  deceased  person;  but  it 
seems  that,  where  the  jurisdiction  over  estates  of  deceased 
persons  is  confided  to  probate  courts,  the  power  of  courts  of 
equity  is  thereby  excluded.  In  some  States  the  statute  author- 
izes the  sale  or  mortgage  of  real  estate  for  the  payment  of  debts 
of  deceased  persons;  but  without  statutory  provision  to  that 
effect  courts  of  probate  have  no  power  to  order  or  authorize  an 
executor  or  administrator  to  mortgage  the  real  estate;  hence  a 
mortgage  authorized  by  a  court  not  havdng  jurisdiction,  or  in 
a  proceeding  in  which  the  requirements  of  the  statute  have  not 
been  observed,  is  void,  and  cannot  bind  the  interests  of  the  heirs, 
unless  they  are  precluded  from  objecting  by  the  doctrine  of 
estoppel. 

The  power  to  sell  real  estate  given  in  a  will  does  not  neces- 
sarily Include  the  power  to  mortgage  it.  Such  a  power  must  be 
exercised  to  the  extent  and  in  the  manner  specified;  it  must 
accomplish  the  purpose  had  in  view  by  the  testator.  Hence 
the  direction  to  sell  out  and  out,  or  for  a  purpose  or  with  an 
object  beyond  the  raising  of  a  particular  charge,  does  not  au- 
thorize a  mortgage,  because  the  testator's  Intention,  the  object 
to  be  accomplished  by  the  power  conferred,  is  the  conversion 
of  the  property.  And  it  Is  held  that  a  trust  with  a  power  to  sell 
imports,  prima  facie,  a  power  to  sell  "out  and  out,"  and  will 
not  authorize  a  mortgage,  unless  there  is  something  in  the  will 
to  show  that  a  mortgage  was  within  the  intention  of  the  testa- 
tor. If,  however,  the  conversion  be  subservient  to  some  other 
purpose  or  object,  for  instance,  the  raising  of  money  for  a  spe- 


§  33S]  THE  MANAGEMENT   OF  THE   REAL   PROPERTY.  297 

cific  purpose  by  the  sale  of  real  estate,  the  power  to  sell  is  held 
to  include  the  power  to  mortgage,  if  the  intention  of  the  testator 
is  thereby  fully  accomplished.  It  is  said,  in  such  case,  that  the 
power  to  sell  includes  the  power  to  mortgage,  because  a  mort- 
gage is  but  a  conditional  sale. 


29S       TUE  L.\w  OF  decedents'  estates.   [§  339,  340 


PART  III 

OF  THE  PRIVITY  AMONG  EXECUTORS  OR  ADMINISTRATORS 
OF  THE  SAME  ESTATE. 

CHAPTER  XXXVII. 

UNITY  OF  ESTATE  AMONG  EXECUTORS  AND  ADMINISTRATORS  OF 
THE   SAME   DECEDENT. 

§  339.  Power  of  Co-executors  to  bind  Each  Other  by  Acts  of 
Administration.  —  The  title  of  co-executors  and  co-administra- 
tors to  the  assets  of  the  estate  is  joint,  not  joint  and  several. 
If  one  or  more  of  the  number  die,  resign,  or  be  removed,  the 
estate  passes  to  and  vests  in  those  surviving  or  remaining.  From 
this  joint  title  it  results  that  suits  at  la^x  for  the  estate,  including 
recovery  of  choses  in  action  which  belonged  to  the  deceased, 
can  only  be  brought  by  all  the  executors  or  administrators.  A 
suit  by  less  than  all  would  be  open  to  a  plea  in  abatement.  On 
the  other  hand,  apart  from  suing,  all  have  equal  authority,  and 
any  one  or  more  can  dispose  of  assets ;  and  such  acts  are  binding 
upon  all  the  others,  though  they  were  not  concerned  therein. 
Thus  sales  of  chattels,  assignment  of  notes,  compounding  of 
debts,  and  submission  of  matters  to  arbitration  are  binding, 
though  done  by  less  than  all  the  executors  or  administrators, 
to  the  same  extent  as  if  done  by  all. 

As  the  payment  of  a  debt  by  one  of  several  executors  or  ad- 
ministrators is  necessarily  a  discharge  to  all,  so  the  payment  of 
a  legacy  by  one  releases  all  the  others  from  liability  therefor, 
even  if  payment  was  by  a  note,  and  the  maker  became  insolvent 
without  discharging  it.  So  the  delivery  of  property  to  the  leg- 
atee by  one  precludes  the  other  executor  from  further  authority 
over  such  property. 

§  340.  The  Liability  of  one  Co-executor  or  Co-administrator  for 
the  Acts  of  Another.  —  Since  each  of  several  executors  or  ad- 


§341]  UNITY   OF   ESTATE   AilONG   EXECUTORS.  299 

ministrators  has  full  power  to  reduce  to  possession  all  assets 
and  collect  all  debts  due  to  the  estate,  and  is  responsible  for  all 
assets  he  receives,  payment  to  him  will  discharge  the  debtor. 
But  payment  of  money  or  delivery  of  assets  by  one  co-executor 
or  co-administrator  to  another  does  not  discharge  him.  Hav- 
ing received  the  assets  in  his  official  capacity,  he  can  discharge 
himself  only  by  a  due  administration  thereof  in  accordance 
with  the  provisions  of  the  will  or  the  requirements  of  the  law. 
Co-executors  and  co-administrators  are  not  liable  to  one  an- 
other; but  each  is  liable  to  the  beneficiaries  of  the  estate,  whether 
creditors,  next  of  kin,  or  legatees,  to  the  full  extent  of  the  assets 
received. 

Ordinarily,  one  joint  executor  or  administrator  is  not  liable 
for  the  assets  which  come  into  the  hands  of  another,  nor  for  the 
laches,  waste,  devastavit,  or  mismanagement  of  a  co-executor  or 
co-administrator;  unless  he  consent  to  or  join  in  any  act  result- 
ing in  a  loss  to  the  estate,  in  which  case,  though  the  loss  be  the 
direct  consequence  of  the  default,  carelessness,  or  mismanage- 
ment of  the  other,  they  will  all  be  equally  hable.  So  if  he  care- 
lessly permit  the  co-executor  to  mismanage  or  waste  the  estate, 
he  becomes  liable.  What  constitutes  such  negligence  as  to  make 
one  liable  for  the  devastavit  or  mismanagement  of  the  estate  by 
his  co-executor  or  co-administrator,  must  always  largely  de- 
pend upon  the  circumstances  of  each  case. 

§  341.  Remedies  in  Protection  of  Co-administrators  against 
Liability  for  One  Another's  Acts.  —  It  follows  from  the  unity  of 
the  estate  of  several  executors  and  administrators,  which  is  such 
that  in  relation  thereto  they  are  all  considered  as  one  person 
in  law,  — first,  that  each  has  power  to  take  possession  of  the 
assets,  which  neither  of  the  others  can  hinder,  and  that,  having 
taken  possession,  neither  of  the  others  can  take  them  from 
him;  and,  secondly,  that  they  can  neither  contract  with  one 
another,  nor  bring  an  action  at  law  against  one  or  more  of  their 
number,  because  a  man  cannot  be  both  plaintiff  and  defendant 
in  the  same  cause,  and  in  bringing  an  action  all  must  join  as 
plaintiffs.  Now,  it  would  be  clearly  irrational  and  unjust  to 
hold  any  person  responsible  for  the  acts  of  others  which  he  can 
neither  control  nor  prevent,  and  equally  unwise  and  unjust 
to  dispense  with  any  of  the  elements  of  protection  to  the  estates 


300  THE  LAW  OF  DECEDENTS'  ESTATES.         [§§  342,  343 

of  deceased  persons  wliich  the  vigilance,  prudence,  and  good 
faith  of  all  or  any  one  of  the  joint  executors  and  administrators 
afford;  hence  it  is  the  duty  of  all  and  each  of  them  to  interpose 
when  any  jeopardy  to  the  interests  of  the  estate  by  the  negli- 
gence or  bad  faith  of  a  co-executor  or  co-administrator  comes 
to  their  notice.  This  they  may  do  by  invoking  the  aid  of  a 
court  of  equity,  which,  upon  i)roof  of  mismanagement  or  jeop- 
ardy of  the  estate  by  any  one  or  more  of  the  executors  or 
administrators,  will  restrain  him  from  further  meddling  with 
the  estate,  and  compel  him  to  restore  the  funds  in  his  hands, 
unless  a  complete  remedy  is  given  by  statute  in  the  probate 
court. 

Power  is  now  given  to  probate  courts  in  most  States,  either 
to  remove  or  demand  bond  and  security  from  executors  and 
administrators  whenever  it  be  necessary  for  the  safety  of  the 
estate;  where  such  is  the  case,  courts  of  equity  will  not  interfere 
betw^een  co-executors,  unless  it  be  absolutely  necessary  for  the 
purposes  of  justice;  but  if  there  be  no  adequate  power  in  the 
probate  court,  equity  will  grant  relief. 

§  342.  Executor's  Executor  representing  the  Executor's  Testator. 
—  At  common  law  the  executor  of  an  executor,  how  far  soever 
in  degree  remote,  "  stands  as  to  the  points  both  of  being,  having, 
and  doing,  in  the  same  state  and  plight  as  the  first  and  immedi- 
ate executor."  ^  Hence  the  executor  of  the  executor  takes  the 
uncompleted  administration  of  the  original  testator's  estate  by 
operation  of  law. 

The  common-law^  rule  in  this  particular  is  abolished  by  stat- 
ute in  nearly  all  the  States.^  In  this  country,  therefore,  the 
general  statutory  rule  is  that  upon  the  death  of  an  executor,  as 
well  as  for  the  vacation  of  his  office  for  any  other  reason  before 
the  estate  is  fully  administered,  an  administrator  de  bonis  non 
cum  testamcnto  annexo  must  be  appointed,  upon  whom  devolve 
all  the, powers  of  the  deceased  executor. 

§  343.  Succession  in  the  administration  at  Common  Law.  — 
The  administrator  de  bonis  non  administratis  (of  goods  which 
have  not  been  administered)  succeeds  to  the  legal  ov/nership  of 
all  personalty  of  the  deceased  which  has  not  been  administered 

1  Wiliiams  Ex.  [959]. 

2  For  particulars,  see  Woerner  on  Administration,  §  350. 


§  343]  UNITY    OF    ESTATE    AMONG    EXECUTORS.  301 

by  prior  personal  representatives.  As  to  the  property  of  the 
deceased  which  remains  in  specie,  unchanged  by  the  prior  per- 
sonal representative,  the  administrator  de  bonis  non  everywhere 
takes  title  as  the  representative  of  the  deceased,  not  as  succeed- 
ing the  prior  executor  or  administrator.  As  to  such  assets  his 
position  is  the  same  as  if  he  had  taken  them  in  original  admin- 
istration. Such  assets  were  never  administered.  But  at  com- 
mon law  "  all  the  property  which  has  been  mixed  with  that  of  a 
prior  executor  or  administrator,  or  which  has  been  converted 
to  his  individual  use,  or  into  another  form,  in  short  all  property 
of  the  deceased  which  does  not  remain  in  specie,  is  administered 
and  not  unadministered  property.  The  former  executor  (or 
his  estate  if  he  be  dead)  is  liable  to  creditors,  legatees,  and  cred- 
itors only,  for  his  conversion  or  waste  of  the  assets  of  the  estate, 
and  they  can  maintain  suit  against  him  (or  his  estate)  therefor. 
The  prior  personal  representative  is  not  accountable  to  an  ad- 
ministrator de  bonis  non  for  such  maladministration  or  for  any- 
thing except  the  goods  and  personal  property  of  the  deceased 
in  his  hands  in  specie."  ^ 

In  equity,  however,  a  distinction  is  drawn  between  legal  and 
valid  acts  of  administration,  and  such  as  are  invalid,  or  fraudu- 
lent, as  being  for  the  individual  benefit  of  the  administrator,  in 
violation  of  the  policy  of  the  law.  In  such  case  a  court  of  equity 
will  annul  the  acts  complained  of,  and  subject  the  property  to 
the  control  of  the  administrator  de  bonis  non,  or  even  entertain 
a  bill  for  an  accounting. 

During  one  period  of  English  history,  administrators  as  well 
as  executors  became  the  owners  of  the  residuum  of  estates  in 
their  charge;  it  was  very  important,  then,  to  cut  off  the  pos- 
sibility that  such  residuum  should  go  to  a  subsequent  admin- 
istrator, by  converting  the  estate,  so  that,  on  the  death  or 
removal  of  the  executor  or  administrator,  there  would  be  no 
residuum  for  the  administrator  de  bonis  non.  Under  this  con- 
dition of  things,  conversion,  whether  rightful  or  \\Tongfiil, 
constituted  administration,  in  the  sense  of  changing  the  execu- 
"tor's  or  administrator's  title,  because  that  which  he  first  held 
in  aider  droit  by  the  conversion  was  made  his  in  proprio  jure; 
he  took  the  same  title  as  any  purchaser  from  the  executor  or 
1  Michigan  Trust  Co.  v.  Ferry,  175  Fed.  (C.  C.  A.)  667. 


302  THE   LAW   OF  DECEDENTS*   ESTATES.  [§344 

administrator  would  obtain  at  a  sale  of  the  effects,  so  that 
neither  a  creditor,  heir,  or  legatee,  nor  an  administrator  de 
bonis  72011,  could  further  follow  it.  Thus  it  became  the  rule  at 
common  law,  that  for  a  \\Tongful  conversion,  whereby  cred- 
itors, legatees,  or  distributees  of  the  deceased  were  prejudiced 
in  their  rights,  they  have  an  action  against  the  \M'ong-doer  for 
damages,  for  which  he  and  his  sureties,  and  in  some  instances 
his  personal  representatives,  are  liable. 

§  344.  Administration  de  bonis  non  under  American  Statutes. 
—  The  historical  justification  of  this  rule,  however  valid  in 
England,  does  not  exist  in  America,  except  as  an  element  of  the 
common  law;  hence,  many  of  the  States  have  discarded  the  rule 
itself;  in  some  instances  by  judicial  authority,  but  most  gener- 
allj'  by  statutory  enactments.  Administration  is,  in  the  States 
not  adhering  to  the  artiJBcial  common-law  rule,  understood  to 
consist  in  the  legal  proceedings  necessary  to  satisfy  the  claims 
of  creditors,  next  of  kin,  legatees,  or  whatever  other  parties 
ma}'  have  any  claim  to  the  property  of  a  deceased  person;  until 
all  such  claims  are  satisfied,  —  whether  of  creditors  or  heirs, 
the  ^^-idow  or  minor  children  of  the  deceased,  —  administration 
is  not  completed.  Executors  and  administrators  arc  the  func- 
tionaries appointed  by  the  law  to  accomplish  this  purpose,  and 
are  invested  with  the  legal  o"\\Tiership  of  the  decedent's  prop- 
erty until  it  is  accomplished.  Stripped  of  extraneous  elements 
and  considerations,  this  is  the  office  of  administration,  and  the 
scope  of  power  of  executors  and  administrators  is  commensur- 
ate therewith.  On  this  view  the  administrator  de  bonis  non  is 
trustee  for  the  beneficiaries  of  the  estate.  The  beneficiaries 
have  no  direct  cause  of  action  against  the  former  personal  rep- 
resentative, or  his  representative,  but  look  solely  to  the  admin- 
istrator de  bonis  non,  and  his  bond.  The  administrator  de 
bonis  non  is  solely  charged  vnXh.  calling  the  former  executor  or 
administrator  to  account,  including  recovery  for  any  devastavit 
by  the  predecessor. 

These  principles,  in  derogation  of  common  law,  appear  in  the 
statutes  of  most  States.  In  some  they  are  recognized  to  the  full 
extent.  But  in  most  States  it  will  be  found  that  the  theory  does 
not  apply  in  every  particular.  Especially  is  there  difference  in 
determining  in  whom  is  the  right  to  call  the  prior  personal  rep- 


§  345]  UNITY  OF  ESTATE  AMONG  EXECUTORS.  303 

resentative  to  account  for  a  devastavit.     For  details  a  fuller 
treatise  must  be  consulted.^ 

§  345.  Privity  between  Successive  Administrators.  —  The  ques- 
tion of  privity  between  an  administrator  de  bo}iis  non  and  his 
predecessor,  that  is  to  say,  the  extent  to  which  the  one  is  bound 
by  the  antecedent  acts  of  the  other,  must  be  determined  by  the 
scope  and  effect  of  these  acts  upon  the  course  of  the  administra- 
tion. It  is  well  settled,  both  at  common  law  and  in  all  the  States, 
that  acts  binding  upon  the  original  administrator  as  acts  of  ad- 
ministration, by  which  the  right  of  a  debtor,  creditor,  legatee, 
or  distributee  against  or  in  favor  of  the  estate  of  the  deceased 
is  affected,  are  equally  binding  upon  all  successors.  To  this 
extent,  the  privity  between  them  is  complete,  because  what  an 
administrator  does  lawfully  within  the  sphere  of  his  powers  is 
in  law  the  same  as  if  his  testator  or  intestate  had  done  it,  and 
not  to  be  questioned  by  any  one  representing  him.  This  privity 
does  not  arise  out  of  any  relation  between  tliem  to  each  other, 
but  is  the  result  of  the  relation  of  each  of  them  to  the  testator 
or  intestate,  which,  to  the  extent  to  which  property  left  by 
him  may  come  into  their  hands  respectively,  is  the  same  in 
both. 

In  those  States  which  have  augmented  the  powers  of  admin- 
istrators de  bonis  non,  the  estate  comes  into  their  hands  affected, 
nevertheless,  by  all  the  rightful  acts  of  the  predecessors,  in- 
cluding matters  of  evidence  affecting  parties  in  interest.  Thus, 
the  presentation  to  the  executor  of  a  claim  against  the  estate  is 
good  against  the  administrator  de  bonis  non,  and  need  not  be 
presented  anew;  and  the  subsequent  resignation  of  the  execu- 
tor does  not  impair  the  value  of  his  written  acknowledgment 
of  such  presentation. 

The  proposition  stated  involves,  as  a  correlative  thereto,  that 
the  successor  is  not  bound  by  any  illegal  act  of  an  executor  or 
administrator;  the  authority  of  the  administrator  de  bonis  non 
being  derived,  not  from  his  predecessor,  but  from  the  deceased 
testator  or  intestate,  there  is  no  such  privity  as  will  estop  the 
successor  from  assailing  the  unlawful  acts  of  his  predecessor. 

There  is  some  difference  in  the  decisions  as  to  the  rights  of 
administrators  de  bonis  non  touching  the  contracts  made  by 
*  Sec  Wocmer  on  Administration,  §  352. 


301  THE  LAW   OF  DECEDENTS'  ESTATES.  [§  345 

their  predecessors.  It  appears,  from  what  has  already  been  said 
in  tliis  respect,  that,  where  the  common-law  rule  is  observed, 
tlie  proceeds  of  a  sale  belong  to  the  administrator  in  his  own 
right,  and  on  his  death  devolve  to  his  personal  representatives. 
It  is  obvious  that  in  such  case  the  administrator  dc  bonis  noii 
cannot  sue  for  the  price  of  the  goods  so  sold;  nor  for  a  promissory 
note  made  to  tlie  predecessor.  Nor  can  execution  issue  against 
an  administrator  de  bonis  iion,  altliough  he  have  sufficient  assets, 
upon  a  judgment  against  his  predecessor,  for  judgment  against 
the  administrator  in  chief  gives  no  cause  of  action  against  the 
administrator  de  bonis  non;  nor  can  a  judgment  in  favor  of  an 
administrator  be  revived  against  his  successor.  The  rigor  of 
this  rule  at  law  induced  coiu-ts  of  chancery  to  adopt  a  different 
course,  allowing  the  administrator  de  bonis  non  to  revive  suits 
instituted  by  the  executor,  and  statutes,  both  in  England  and 
some  of  the  American  States,  giving  administrators  de  bonis 
non  authority  to  continue  suits  brought  by  or  against  former 
administrators,  and  to  maintain  scire  facias,  writs  of  error,  etc., 
on  judgments  by  or  against  them,  in  so  far  as  they  affected  the 
estate  under  administration;  and  to  this  extent  establishing 
privity  between  successive  administrators. 

The  preceding  paragraph,  it  should  be  noted,  deals  with  the 
common-law  view  of  the  title  of  the  administrator  dc  bonis  non. 
Under  the  American  statutory  view,  set  forth  in  the  preceding 
section,  the  administrator  de  bonis  non  would  generally  succeed 
to  the  rights  and  duties  of  his  predecessor. 
■  The  relation  between  special  administrators,  such  as  those 
'pendente  lite,  or  durante  minore  cetate,  with  the  administrators 
in  chief  are  governed  by  the  principles  above  laid  down  as 
to  administrators  de  bonis  non  and  their  predecessors.  These 
special  administrators  are  in  privity  with  the  executor  or  ad- 
ministrator in  chief,  to  the  extent  of  binding  the  estate,  and 
hence  their  successors,  by  their  lawful  acts  of  administration. 


§  346]  PAYMENT  OF  DEBTS.  305 

TITLE   FIVE. 

OF   THE   PAYMENT   OF   DEBTS   BY   EXECUTORS 
AND   ADMINISTRATORS. 


§  346.  Origin  of  the  Common-law  System  of  Paying  Debts  of 
Deceased  Persons.  —  The  principal  function  of  executors  and  ad- 
ministrators is  to  pay  the  debts  and  discharge  the  Uabihties 
of  their  testators  or  intestates.  To  accompHsh  this  purpose 
the  title  to  all  the  personal  property  of  the  decedent  is  vested 
in  them  in  all  cases;  as  well  as,  under  English  and  American 
statutes,  a  power,  contingent  upon  the  insufficiency  of  the  per- 
sonal property,  over  the  real  estate. 

A  just  regard  for  the  rights  of  creditors  produced,  in  England, 
the  statutes  which  deprived  the  ecclesiastical  courts  of  their 
former  substantially  unlimited  control  over  the  goods  and  effects 
of  persons  dying  intestate  within  their  jurisdiction.  The  com- 
mon-law courts,  and,  to  a  still  greater  extent,  the  courts  of  chan- 
cery, then  undertook  to  accomplish  justice  between  creditors 
on  the  one  hand,  determining  their  relative  priorities,  and  be- 
tween creditors  and  the  widow  and  next  of  kin  on  the  other,  as- 
suming a  superintending  control  over  executors  and  adminis- 
trators at  law  and  in  equity,  and  lea\ing  the  ecclesiastical  courts 
with  power  to  do  little  more  than  grant  probate  of  wills  and 
appoint  administrators.  Owing  to  the  heterogeneous  elements 
entering  into  its  inception  and  development,  the  system  of 
administration  at  common  law,  as  affected  by  English  statutes, 
and  particularly  its  provisions  for  the  pajTnent  of  debts  out  of 
decedents'  estates,  became  highly  intricate,  costly,  and  fraught 
with  hazard  to  even  the  most  prudent  and  well-meaning  execu- 
tor or  administrator.  In  America  this  complicated  machinery 
has,  in  most  States,  been  supplanted  by  a  simple,  efficient,  and 
inexpensive  system  under  their  statutes,  easily  understood,  in 
its  principal  features,  by  persons  of  ordinary  intelligence,  safe 
and  speedy  in  its  operation,  accomplishing  its  purpose  at  a 
minimum  of  cost  and  litigation. 


506  THE    LAV,'  OF   DECEDENTS'  ESTATES.  [§  347 


PART  I. 

OF  THE  PRIORITY  OF  DEMANDS  AGAINST  THE  ESTATES 
OF  DECEASED  PERSONS. 

§  347.  Distinction  between  the  Debts  of  the  Decedent  and  Lia- 
bilities contracted  by  the  Personal  Representative.  —  Before  en- 
tering upon  the  consideration  of  the  duties  and  powers  of 
executors  and  administrators  in  respect  of  the  debts  of  the  de- 
ceased, it  must  be  observed  that  the  expenses  of  administra- 
tion, including  the  cost  of  the  probate  of  the  last  will,  if  any, 
and  of  the  funeral  of  the  deceased,  necessarily  take  precedence 
of  the  debts  incurred  by  the  deceased. 

When  the  services  rendered  are  of  value  to  the  estate  and 
the  executor  is  insolvent,  an  action  will  lie  in  equity  to  enforce 
payment  for  such  services  out  of  the  assets  of  the  estate.  This 
is  an  application  of  the  doctrine  that  equity  can  recognize 
services  in  saving  a  trust  fund  as  the  basis  for  a  lien  on  the  fund. 

But  it  is  a  well-recognized  principle,  that  for  liabilities  con- 
tracted by  the  personal  representative,  although  for  the  benefit 
and  in  the  interest  and  behalf  of  the  estate,  it  is  not  liable  to 
creditors.  Disbursements,  reasonable  in  amount  and  for  ser- 
vices necessary  in  the  proper  discharge  of  the  duties  imposed 
upon  them,  will  constitute  a  charge  in  favor  of  executors  and 
administrators  against  the  estate,  although  their  allowance 
should  leave  no  surplus  to  pay  creditors  of  the  deceased;  but 
in  the  absence  of  statutory  authority  the  probate  court,  as 
already  stated,  has  no  jurisdiction  to  adjudicate  between  the 
personal  representative  and  the  creditor. 

While  it  is  true  that  in  the  absence  of  statutes  no  action  lies 
against  the  estate  for  services  rendered  at  the  request  of  the 
executor  or  administrator,  a  number  of  States  show  a  growing 
tendency  to  find  something  in  their  respective  statutes  warrant- 
ing the  allowance  of  such  claims  for  services  rendered  the  per- 
sonal representative  for  the  benefit  of  the  estate  du-ectly  against 
the  estate.^ 

1  U.  S.  Fidelity  &  G.  Co.  v.  People,  44  Colo.  557,  is  an  illustration. 
For  details  of  holding  in  various  States,  see  Woerner  on  Administration, 
§356. 


348]  LIABILITIES  ARISING  AFTER  DEATH.  307 


CHAPTER  XXXVIII. 

OF  THE  PAYMENT  OF  LIABILITIES  ARISING  AFTER  THE  DEATH  OF 
THE   DECEDENT. 

§  348.  Funeral  Expenses  Allowable  as  Incidental  to  the  Admin- 
istration. —  In  America,  funeral  expenses  are  sometimes  classed 
with  debts  of  the  deceased;  and  while  they  invariably  take  the 
jBrst  rank  as  debts,  yet  when  so  considered  and  treated,  they 
are  necessarily  postponed  to  expenses  of  administration. 

But  the  cost  of  burial  is  also  often  viewed  as  an  expense  of 
the  administration.  It  is  the  duty  of  the  executor  or  adminis- 
trator to  bury  the  deceased  in  a  manner  suitable  to  the  estate 
he  leaves  behind  him;  there  is  no  distinction  in  this  respect 
between  an  executor  and  an  administrator;  and  if  this  duty,  in 
the  absence  or  neglect  of  the  executor,  is  performed  by  another, 
—  not  officiously,  but  under  the  necessity  of  the  case,  —  the 
law  implies  a  promise  to  reimburse  him  for  the  reasonable  ex- 
penses incurred  and  paid.  But  this  presumption  does  not  extend 
to  gratuitous  services  rendered  for  a  deceased  friend  or  relative, 
such  as  searching  for  the  remains  of  a  missing  person,  requesting 
the  clergjTnan  to  perform  the  burial  services,  writing  and  send- 
ing to  the  newspapers  advertisements  for  the  funeral,  depositing 
the  corpse  in  one's  house,  and  permitting  the  mourners  to  as- 
semble there,  etc. 

In  this  view,  the  propriety  of  distinguishing  between  funeral 
expenses  as  an  incident  of  the  administration,  for  which  the 
executor  or  administrator  who  paid  them  is  to  be  reimbursed 
in  preference  to  any  creditor  of  the  deceased,  and  such  expenses 
as  constituting  a  demand  against  the  estate,  provable  against 
the  executor  or  administrator,  becomes  apparent.  If  the  latter' 
neither  ordered  the  funeral,  nor  made  himself  personally  re- 
sponsible to  the  undertaker,  it  would  be  unjust  to  hold  him 
liable  de  bonis  propriis  for  expenses  incurred  or  laid  out  by 
others.  In  such  case,  if  all  the  assets  of  a  decedent  are  ex- 
hausted in  the  pa^inent  of  other  expenses  of  administration, 


308  THE  LAW  OF  DECEDENTS'  ESTATES.         [§§  349,  350 

the  plea  of  plene  administravit,  or  want  of  assets,  must  evidently 
be  admissible  in  favor  of  the  executor  or  administrator.  As 
debts,  however,  they  are  in  all  the  States  preferred  to  all  other 
debts  of  the  deceased.  It  is  clear  that,  if  the  executor  volun- 
tarily pay  them,  he  must  be  allowed  credit  for  the  disburse- 
ment as  an  expense  incident  to  the  administration,  because  the 
funeral  is  a  work  of  necessity,  as  well  as  of  charity  and  piety. 

§  349.  Amount  allowed  for  Funeral  Expenses.  —  The  funeral 
expenses  are  to  be  restricted  to  the  amount  necessary  to  bury 
the  deceased  in  the  style  usually  adopted  for  persons  of  the  like 
rank  and  condition  in  society.  If  the  estate  is  solvent,  in  which 
event  the  expense  rests  ordinarily  on  the  distributees  or  residu- 
ary legatees,  more  liberal  allowances  are  passed  than  in  cases 
of  insolvency.  But  even  in  cases  of  insolvency,  the  strict  rules 
laid  down  for  the  protection  of  creditors  in  former  times  have 
given  way  to  the  feeling  that  reasonable  expenses  according 
to  the  decedent's  condition  in  life  should  be  allowed.  The 
whole  matter  of  the  amount  of  the  allowance  is  one  of  judicial 
discretion,  hardly  permitting  of  logical  analysis,  and  best 
studied  by  illustrative  cases.^ 

§  350.  What  Items  are  allowed  as  Funeral  Expenses.  —  \Vliat 
kind  of  items  shall  be  allowed  as  constituting  part  of  the  funeral 
is  a  question  obviously  largely  influenced  by  considerations  gov- 
erning the  amount  to  be  allowed.  A  plain  tombstone  might 
properly  be  allowed  an  insolvent  (though  there  are  holdings  to 
the  contrary),  while  a  costly  monument,  even  in  the  case  of  a 
solvent  estate,  would  be  in  doubt  unless  all  the  family  approved. 
Even  where  the  estate  is  solvent,  mourning  apparel  for  the  fam- 
ily has  been  disallowed.  Expenses  for  funeral  festivals  are  not 
allowed  in  case  of  insolvent  estates.  The  expense  of  communi- 
cating intelligence  of  the  death  of  the  deceased  to  his  family, 
and  where  the  decedent  dies  away  from  home,  the  expenses  of 
transportation  of  the  body  to  his  home  should  be  allowed,  to 
w^hich  may  be  added  the  cost  of  a  person  to  accompany  the 
body  for  the  purpose  of  superintending  such  transportation.^ 

*  For  illustrations  as  to  insolvent  estates,  see  Woemer  on  Adminis- 
tration, §  360;  as  to  solvent  estates,  §  359. 

2  Many  illustrative  rulings  are  collated  in  Woemer  on  Administration, 
§  358. 


§§  351,  352]        LIABILITIES  ARISING   AFTER   DEATH.  309 

The  estate  is  not  liable  for  the  funeral  expenses  of  the  widow 
of  the  deceased ;  and  since  the  husband  is  primarily  liable  for  the 
burial  of  his  deceased  wife,  it  would  seem  that  at  common  law 
her  estate  cannot  be  held  liable  therefor.^ 

§  351.  Expenses  of  Last  Illness  when  preferred  to  Debts.  — 
Expenses  of  the  last  illness  cannot  be  classed  with  those  for  the 
funeral,  because  they  necessarily  accrue  before  the  death,  and . 
therefore  constitute  a  debt  of  the  deceased;  while  the  funeral, 
taking  place  after,  cannot  constitute  a  debt  of  the  deceased, 
but  only  of  the  executor  or  administrator.  It  follows  that  in 
the  account  of  the  executor  or  administrator  he  can  be  allowed 
credit  for  expenses  of  last  illness  only  as  for  a  debt  paid,  of 
whatever  class  the  statute  assigns  to  it.  In  a  few  States,  how- 
ever, physician's  bills  and  other  expenses  of  the  last  illness  are 
classed  by  statute  with  funeral  ex-penses,  and  so  take  precedence 
of  whatever  is  strictly  a  debt  of  the  estate.^ 

§  352.  Expenses  Necessary  in  the  Administration  of  the  Estate. 
—  It  has  already  been  stated,  that  for  the  expenses  attending 
the  accomplishment  of  the  piu-pose  of  administration  growing 
out  of  the  contract  or  obligation  entered  into  by  the  personal 
representative  he  is  to  be  reimbursed  out  of  the  estate,  and  that 
his  claim  to  reimbursement  must  be  superior  to  the  rights  of 
the  beneficiaries.  The  expenses  under  this  category  include 
those  paid  for. probate  of  the  will  (as  elsewhere  discussed),  as 
well  in  the  probate  court  as  on  appeal,  or  other  proceeding  in  a 
contest,  if  carried  on  in  good  faith;  and  the  executor  nominated 
in  such  will  is  entitled  to  a  settlement  of  his  account,  and  re- 
imbursement for  his  expenses  in  preserving  the  estate  and  for 
the  funeral,  although  the  will  be  finally  pronounced  invalid; 
and,  generally,  all  expenses  necessary  in  the  protection  and  pres- 
ervation of  the  estate,  which  have  been  held  to  include  the 
costs  of  establishing  a  claim  against  the  estate.  But  the  general 
rule  seems  rather  to  be  that  costs  incurred  by  the  administrator 
in  defence  of  claims  against  the  estate,  or  in  prosecuting  claims 
in  favor  of  it,  pertain  to  the  administration,  and  are  to  be  al- 
lowed in  full;  but  costs  incurred  by  claimants  in  establishing 

*  But  there  are  holdings  to  the  contrary,  mainly  resting  on  statute. 
See  Woemer,  §  3.58,*  p.  762. 

2  See  Woemer  on  Administration,  §  361. 


310  THE   L^W  OF  DECEDENTS'  ESTATES.  [§  353 

their  claims  stand  on  the  same  footing  with  the  claims  them- 
selves. 

§  353.  Provisional  Alimony  for  the  Surviving  Family.  —  The 
provisions,  money,  and  other  personal  property  set  apart  under 
the  statutes  of  the  several  States  for  the  support  of  the  widow 
and  dependent  children  during  the  period  intervening  before 
they  come  into  possession  of  dower  or  distributive  share  are 
also  paramount  to  the  claims  of  creditors  of  the  decedent. 
The  liability  of  the  administrator,  in  this  respect,  is  purely 
statutory,  as  this  species  of  protection  to  the  surviving  family 
is  unknown  to  the  common  law,  as  we  have  in  an  earlier  chapter 
seen. 

The  distinction  between  the  provisional  alimony  allowed  to 
\\'idow  and  surviving  family,  and  the  distributive  share  of  the 
widow  and  children,  must  not  be  lost  sight  of;  because  the  ad- 
ministrator cannot  be  allowed  credit  in  his  account  as  against 
creditors  of  the  estate,  for  the  disbursements  on  account  of 
boarding,  clothing,  or  schooling  the  minor  heirs,  nor  for  medical 
services  rendered  the  family  after  the  death  of  the  deceased, 
nor  for  necessaries  furnished  to  the  widow. 


§§354,355]      PRIORITY  OF  DEBTS  CREATED  BY  DECEDENT.         311 


CHAPTER  XXXIX. 

OF  THE   PRIORITY   OF  DEBTS   CREATED   BY  THE  DECEDENT. 

§  354.  Priority  of  Debts  at  Common  Law.  —  At  the  common 
law  the  real  estate  of  a  deceased  person  does  not  constitute  assets 
in  the  hands  of  an  executor  or  administrator  for  the  pajinent 
of  debts  unless  charged  thereon  by  vnll;  from  which  it  follows 
that  a  testator  may  charge  his  lands  with  such  debts  and  m 
such  order  as  he  may  prefer.  But  as  to  the  personal  assets  the 
executor  or  administrator  is  bomid,  at  his  peril,  to  observe  the 
order  of  priority  in  the  payment  of  the  debts  of  his  testator  or 
intestate;  for  if  he  pay  those  of  a  lower  rank  first,  ha\ing  notice 
of  the  existence  of  debts  of  a  higher  degree,  he  must,  on  a  de- 
ficiency of  assets,  answer  to  those  of  tlie  higher  degree  out  of 
his  own  estate. 

The  order  in  which  debts  are  payable  out  of  a  decedent's 
estate  is,  at  common  law,  as  follows:  ^rs^,  debts  due  the  crowai 
by  record  of  specialty;  second,  certain  debts  peculiar  to  the 
English  laws  and  customs,  such  as  debts  to  the  post-office  for 
letters,  money  due  the  parish  from  deceased  overseers  of  the 
poor,  funds  in  the  hands  of  officers  of  friendly  societies,  regi- 
mental debts,  etc.;  third,  judgments  of  coiuts  of  record  (except 
those  of  foreign  countries),  and  decrees  in  equity  rendered 
agamst  the  deceased  in  his  \Uetime;  fourth,  recognizances  before 
courts  of  record  or  magistrates,  and  securities  by  statute,  such 
^s  the  statute  merchant,  statute  staple,  and  the  like;  fifth,  debts 
by  special  contract  under  seal,  and  rent;  sixth,  simple  contract 
debts,  those  due  the  crown  taking  precedence  of  those  due  any 
subject,  and  damages  for  injuries  to  real  or  personal  property 
of  another. 

§  355.  Expenses  of  Funeral  and  Last  Illness  as  Debts.  —  The 
order  of  priority  established  in  the  several  States  differs  more 
or  less  from  that  existing  at  common  law,  and  of  cour-^e  among 
the  States  themselves.     In  all  of  them,  however,  funeral  ex- 


312  THE   LAW   OF  DECEDENTS'   ESTATES.        [§§  356,  357 

penses  (if  not  treated  as  incident  to  the  administration,  and 
therefore  exchiding  all  debts)  constitute  a  preferred  class  of 
debts,  ranking  first  in  all  States,  except  North  Carolina  and 
Rhode  Island. 

So  expenses  of  last  illness,  when  treated  as  debt  and  not  placed 
with  funeral  expenses,  generally  take  rank  before  all  other 
debts.^ 

§  356.  Debts  to  the  Government  of  the  United  States.  —  Of  the 
debts  created  by  the  decedent  in  his  lifetime,  those  which  are 
due  to  the  government  of  the  United  States  are  payable  before 
all  others. 

The  preference  in  favor  of  the  United  States  exists  under 
law  of  Congress,  wliich  overrides  the  State  statutes  in  the  few 
cases  in  which  they  contain  inconsistent  pro\'isions.^ 

The  act  of  Congress  places  all  debts  due  the  general  govern- 
ment before  all  other  debts  whatever,  going  further  than  the 
English  rule,  wliich  gives  judgments  of  record  priority  over  sim- 
ple contract  debts  due  the  crown,  and  formerly  gave  specialty 
debts  due  others  a  similar  preference.  This  priority,  however, 
does  not  operate  as  a  lien  upon  the  property  of  the  debtor,  nor 
in  derogation  of  a  lien  existing  before  his  death,  nor  of  the 
widow's  allowance  under  the  State  law,  and  necessarily  depends 
upon  notice  being  given  to  the  executor  or  administrator,  either 
by  action  against  him  or  otherwise,  in  default  of  which  pa^Tuent 
to  other  creditors  cannot  make  him  liable  as  for  devastavit. 
And  the  priority  extends  only  to  the  net  proceeds  of  the  prop- 
erty of  the  deceased  after  payment  of  the  necessary  expenses 
of  administration,  including  taxes  and  funeral  charges,  but  not 
expenses  of  last  illness. 

§  357.  Debts  to  the  State  and  State  Corporations.  —  In  most 
States,  taxes,  rates,  and  other  dues  to  the  State  rank  before 
debts  due  the  citizens.  A  noteworthy  exception  to  the  general 
rule  in  this  respect  is  made  by  Pennsylvania,  whose  statute 
directs  debts  due  the  Commonwealth  to  be  paid  last. 

It  is  generally  held  that  a  claim  for  taxes  is  such  a  one  as 
should  be  paid  by  the  personal  representative  even  without 

^  For  exceptions  and  statutory  modifications  in  the  various  States,  see 
Woemer  on  Administration,  §  365. 
2  U.  S.  V.  Fisher,  2  Cr.  358,  385. 


§§  358,  359]      PRIORITY  OF  DEBTS  CREATED  BY  DECEDENT.        313 

presentation  to  him  or  allowance  by  the  court,  but  that  it  may 
also  be  proved  up  as  a  claim  against  the  estate  in  the  probate 
court  like  other  demands. 

§  358.  Debts  owing  in  a  Fiduciary  Capacity.  —  When  property 
or  funds  held  by  the  deceased  in  a  trust  capacity  can  be  iden- 
tified, they  can  be  followed  in  equity  even  after  the  trustee's 
death.    They  are  not  assets.^ 

Wlien  the  property  or  fund  cannot  be  specifically  traced  and 
segregated  from  the  decedent's  own  money  or  property,  it 
constitutes  a  debt  corresponding  to  the  second  grade  of  debts 
in  England.2  But  in  this  country  it  seems  that,  without  statu- 
tory provisions  on  the  subject,  no  preference  can  be  given  to 
debts  of  this  class  over  other  claims.  A  few  States,  however, 
give  such  claims  priority  by  statute  over  judgments  and  simple 
contract  debts.^ 

§  359.  Judgments  against  the  Decedent  in  his  Lifetime.  — 
Judgments  in  many  States  constitute  liens  on  the  property  of 
the  defendant.  In  several  States  judgments  are  ranked  with 
mortgages,  recognizances,  and  other  liens  existing  against  the 
decedent's  property  at  the  time  of  his  death.  Under  such 
statutes,  the  priority  accorded  them  is  but  the  recognition  of 
theu-  quality  as  liens  upon  the  property  descending.  Hence 
the  priority  extends  only  to  the  property  to  which  the  judgments 
attach  as  such  lien;  and  they  are  payable  according  to  seniority, 
until  such  property  is  exhausted.  Unless  preferred  by  the  stat- 
ute as  debts  of  higher  dignity,  they  rank  with  ordinary  debts 
for  such  amounts  as  remain  unsatisfied  after  exhausting  the 
property  over  which  the  lien  extends.  Discarding  any  question 
as  to  lien,  under  the  English  law  debts  of  record  come  next 
after  debts  by  particular  statutes,  given  as  the  second  class  in 
§  354,  ante.  In  a  number  of  States  judgments  are  by  statute 
placed  by  themselves  in  a  preferred  class. 

At  common  law,  and  in  those  of  the  States  in  which  judg- 
ments are  assigned  to  a  preferred  class  by  virtue  of  their  dignity 
as  debts,  they  are  payable  out  of  the  general  assets,  without 
regard  to  their  seniority,  whether  of  operative  force  or  dormant, 

»  Ante,  §  294. 
2  Ante,  §  354. 
8  See  Woerner  on  Administration,  §  368. 


314  THE   LAW   OF  DECEDENTS'   ESTATES.         [§§  360,  361 

ratably,  if  there  are  not  sufficient  assets  to  pay  all  of  them  in 
full.  The  reason  of  the  priority  accorded  to  them  is  to  be  found 
in  their  superior  dignity  as  debts  of  record,  fixed  and  unques- 
tionable, over  mere  choses  in  action.  Whether  judgments 
technically  not  of  record  (e.  g.,  judgments  of  Justices  of  the 
Peace)  are  included  in  this  priority  is  a  matter  of  construc- 
tion of  tlie  local  statute.  They  are  not  included  at  common 
law. 

As  at  common  law,  so  in  the  several  American  States,  the 
preference,  where  it  is  given,  extends  only  to  domestic  judg- 
ments; those  of  sister  States  or  foreign  countries  are  placed  in 
the  same  class  with  simple  contract  debts.  And  so,  by  the  words 
of  the  statute,  the  preference  is  given  only  to  judgments  rend- 
ered in  the  lifetime  of  the  debtor,  and  extends  in  no  case  to  a 
judgment  rendered  against  the  administrator. 

The  common-law  rule  required  executors  and  administrators 
to  take  notice,  at  their  peril,  of  all  judgments  of  record  against 
the  decedent  remaining  unsatisfied  at  the  time  of  his  death, 
and  the  personal  representative  was  liable  on  these  judgments 
without  presentation  on  constructive  knowledge,  even  without 
actual  knowledge  of  their  existence.  The  hardship  of  this  rule 
has  led  to  enactments  in  various  States  limiting  this  liability 
to  judgments  of  record,  evidenced  in  some  official  listing  pro- 
wled by  statute,  which  makes  it  practicable  to  ascertain  all 
such  judgments. 

But  in  the  States  generally,  as  will  appear  more  fully  here- 
after, the  judgment  creditor  must  give  the  same  formal  notice 
of  his  demand  as  any  other  creditor.  In  such  States  the  per- 
sonal representative  is  not  liable  unless  such  notice  is  given.^ 

§  360.  Debts  by  Specialty.  —  The  preference  existing  at  com- 
mon law  in  favor  of  debts  by  specialty,  as  bonds,  covenants, 
and  other  instruments  under  seal,  over  simple  contract  debts, 
has  now  been  abolished,  it  is  believed,  in  all  the  States  but 
Georgia. 

§  361.  Rent.  —  Debts  for  rent,  which  at  common  law  take 
rank  with  specialties  as  preferred  debts,  are  accorded  priority 
with  varying  rank  among  debts  in  a  few  of  the  American 

*  The  various  groups  of  States  alluded  to  are  given  in  Woemer  on 
Administration,  §  369. 


§§  362,  363]      PRIORITY  OF  DEBTS  CREATED  BY  DECEDENT.         315 

States.^     But  in  the  other  States  no  preference  is  given,  it  is 
believed,  to  debts  for  rent  over  other  debts. 

It  is  obvious,  however,  that  rents  due  or  accruing  upon  leases 
held  by  the  testator  or  intestate,  and  extending  to  a  period 
not  determined  at  the  time  of  his  death,  may  stand  upon  a 
different  ground  from  other  debts  if  the  leases  are  beneficial  to 
the  lessees.  Although  the  lessors  may  not  have  it  in  their  power 
to  enforce  the  payment  of  the  rent  covenanted  for  in  prefer- 
ence to  other  claims  against  the  estate,  yet  they  may  forfeit 
the  lease  for  its  nonpayment;  and  to  avoid  such  forfeiture,  if  the 
estate  would  suffer  loss  thereby,  it  may  become  the  duty  of  the 
executor  or  administrator  to  pay  the  rent  in  preference  to  other 
claims.  So,  also,  while  a  proceeding  to  recover  rent  by  distress 
proceedings  cannot  be  commenced  against  an  administrator,  the 
landlord  may  have  a  lien  upon  the  crops  grown,  which  gives 
him  a  preference  over  unsecured  claims. 

§  362.  Wages.  —  Wages  due  to  servants  constitute  a  preferred 
class  of  debts  in  several  States,  not  exceeding,  generally,  one 
year  in  time,  and  confined  to  domestic  servants  and  laborers 
on  a  farm.  In  some  States  the  class  entitled  to  this  preference 
is  much  enlarged.  In  Kansas  for  instance  it  is  not  confined  to 
house  servants,  but  extends  to  all  wage  earners,  including  a 
clerk  in  the  store  of  the  deceased.  The  varying  details  depend 
on  local  statutes,  since  no  such  right  exists  at  common  law,  and 
are  beyond  the  scope  of  this  book.^ 

§  363.  Simple  Contract  Debts.  —  After  the  preferred  debts 
have  been  discharged,  all  liabilities  of  the  deceased,  of  any  kind 
or  nature,  not  included  in  one  of  the  preferred  classes,  are  en- 
titled to  be  paid  pro  rata,  except  that  in  some  of  the  States  a 
further  classification  is  introduced,  giving  claims  presented 
to  the  administrator  within  a  given  period  of  the  administra- 
tion preference  over  those  presented  at  a  later  period.  The 
claims  presented  within  the  earlier  period  must  be  paid  in  full, 
before  anything  is  paid  on  claims  subsequently  presented.  The 
subject  is  discussed  hereafter.^ 

^  For  details,  see  Woemer  on  Administration,  §  372. 
*  See  Woerner  on  Administration,  §  373. 
'  See  next  section  and  also  post,  §  520. 


316  THE    LAW   OF   DECEDENTS'   ESTATES.  [§  364 


PART  II. 

OF  THE  COMMON-LAW  SYSTEM  OP  PAYING  DEBTS   OF 
DECEASED   PERSONS. 

§  364.  Payment  of  Debts  according  to  their  Priority.  —  We 
have  already  seen,  that  executors  and  administrators  are  bound, 
in  the  payment  of  the  debts  of  their  testators  and  intestates, 
to  observe  the  order  of  priority  estabhshed  by  law.  It  is  easily 
understood,  that  unless  this  requirement  is  strictly  adhered  to, 
and  executors  and  administrators  held  to  personal  liability  on 
their  bonds  for  its  violation,  the  rights  of  creditors  would  be 
imperilled  and  the  policy  of  the  law  subverted. 

It  may  not  be  out  of  place  to  remark,  that  the  violation  of 
this  rule  of  law  is  rarely  attributable  to  bad  faith,  or  a  conscious 
disposition  to  unduly  favor  one  creditor  to  the  prejudice  of 
another;  it  arises  sometimes  out  of  sheer  ignorance  of  the  law, 
and  at  other  times  in  consequence  of  thoughtlessness  and  lack 
of  caution  and  foresight.  It  happens  but  too  often  that  the 
assets  of  an  estate  fall  far  short  of  the  expectations  of  heirs  and 
personal  representatives,  even  after  the  inventory  and  ap- 
praisement have  been  filed;  and  more  often  still,  that  the  lia- 
bilities turn  out  to  be  much  greater  than  they  supposed.  Many 
estates  prove  insolvent,  which  are  at  first  looked  upon  as  ample 
to  pay  all  debts  and  leave  handsome  portions  to  the  heirs; 
yet  executors  and  administrators  often  close  their  eyes  to  the 
possible,  in  many  cases  imminent,  consequences  of  paying  debts 
indiscriminately.  Widows,  in  particular,  zealous  to  vindicate 
the  good  name  of  departed  husbands,  eagerly  pay  all  debts 
as  fast  as  presented,  and  as  long  as  they  have  anything  to  pay 
with,  frequently  involving  loss  to  other  bona  fide  creditors, 
themselves,  or  their  bondsmen. 

Simple  obedience  to  the  law  is  suflBcient  to  avoid  such  danger. 


§§  365,  366]    THE   PAYilENT   OF  DEBTS  AT   C0:MM0N   LAW.  317 


CHAPTER  XL. 

OF  THE  PAYMENT  OF  DEBTS  AT  COMMON  LAW. 

§  365.  Common-law  Preference  among  Creditors  of  Equal  De- 
gree. —  As  among  creditors  of  equal  degree  the  executor  or  ad- 
ministrator is  entitled,  at  common  law,  to  pay  whom  he  will 
first;  but  if  one  of  several  creditors  of  equal  degree  sue  the  ex- 
ecutor or  administrator  and  obtain  judgment,  he  must  be  sat- 
isfied before  the  others  who  have  not  obtained  judgment;  and 
after  notice  to  the  executor  of  an  action  commenced  against 
him,  he  is  restrained  from  making  a  voluntary  pajTiient  to  any 
other  creditor  of  equal  degree.  Still,  the  executor  may  give 
preference,  even  after  action  commenced  by  one,  to  another 
creditor  of  equal  degree  by  confessing  judgment,  although  such 
creditor  has  not  taken  out  process.  So,  after  action  commenced 
by  one,  another  creditor  of  equal  degree  may  gain  preference 
by  greater  vigilance  in  obtaining,  in  an  action  subsequently 
commenced  by  him,  a  prior  plea  confessing  assets  to  a  certain 
amount.  If  a  creditor  file  a  bill  in  equity  in  his  ovm.  behalf 
only,  and  proves  his  debt  and  obtains  a  decree,  he  must  be  first 
satisfied,  as  if  he  had  obtained  a  judgment  at  law;  and  although 
the  decree  cannot  be  pleaded  at  law,  yet  the  executor  will  be 
protected  in  paying  it,  and  proceedings  against  him  at  law 
stayed  by  injunction.  If  a  creditor  bring  a  suit  in  equity,  not 
for  himself  alone,  but  for  himself  and  all  other  creditors,  a  decree 
for  an  account  and  distribution  will  be  considered  in  the  nature 
of  a  judgment  for  all  the  creditors;  and  although  the  legal 
priority  of  creditors  will  not  be  affected  thereby,  the  power  of 
preference  no  longer  exists,  because  no  payment  to  any  credi- 
tor, made  after  notice  of  the  decree,  will  be  allowed. 

§  366.  Right  of  Retainer  at  Common  Law.  —  Under  the  doc- 
trine of  retainer,  as  known  to  the  common  law,  executors  and 
administrators  retain  out  of  the  assets  of  the  estate  payment 
of  the  debts  due  themselves  from  the  intestate  in  preference  to 


318  THE   LAW  OF  DECEDENTS'  ESTATES.  [§  367 

the  other  creditors  of  equal  degree.  Retainer  is  the  legitimate 
result  of  the  doctrine  of  priority  to  the  creditor  who  first  brings 
action,  together  with  the  right  of  preference  in  the  adminis- 
trator, before  action  brought.  An  action  by  an  administrator, 
in  his  capacity  as  creditor  of  the  intestate,  against  himself,  in 
his  capacity  as  representative  of  the  deceased,  would  be  absurd; 
the  right  to  prefer,  then,  necessarily  takes  the  shape  of  retainer, 
otherwise  he  would  lose  the  amount  of  his  own  debt,  if  other 
creditors  brought  suit  and  the  estate  turned  out  insolvent.  The 
personal  representative  can  in  no  case  retain  against  a  debt  of 
a  superior  degree. 

The  privilege  of  retainer  extends  to  specific  personal  prop- 
erty due  or  belonging  to  the  executor  or  administrator,  as  well 
as  to  the  assets,  to  extinguish  a  debt  due  him. 

The  right  of  retainer  exists  not  only  in  favor  of  executors  and 
general  administrators,  but  also  for  temporary  or  limited  ad- 
ministrators. There  can  be  no  retainer  by  the  executor  or 
administrator  for  damages  unliquidated  or  arbitrary  in  their 
nature,  such  as  for  a  tort. 

The  doctrine  of  retainer  is  outlined  here  as  an  important  ele- 
ment in  the  common-law  system  of  administration.  Under  the 
American  system,  however,  the  doctrine  is  almost,  but  not 
wholly,  obliterated,  as  will  appear  in  the  later  discussion  of  the 
claims  of  executors  and  administrators.^ 

§  367.  Consequence  of  paying  Legatee  before  Notice  of  Debt.  — 
The  common-law  principle  subjecting  all  personal  property  in 
the  hands  of  the  executor  or  administrator  to  liability  for  the 
payment  of  debts  of  the  deceased  gave  rise  to  very  grave  com- 
plications, and  until  the  matter  was  remedied  in  equity,  and 
subsequently  by  statutory  provisions,  produced  great  hardship 
to  executors  and  administrators,  whenever  the  question  of 
paying  legacies,  or  delivering  the  residue,  arose  in  cases  where 
the  testator  or  intestate  had  entered  into  covenant,  or  bond  with 
condition,  or  the  like,  upon  which  liability  might  or  might  not 
arise.  It  was  held,  as  early  as  the  reign  of  Queen  Elizabeth, 
that  the  payment  of  a  legacy  was  compellable,  notwithstanding 
a  bond  which  had  not  been  forfeited;  but,  on  the  other  hand. 
Lord  Hardwicke  held  that  payment  of  a  legacy,  after  notice  of 
1  See  post,  §  384. 


§  3GS]  THE   PA"i-:*IEXT   OF  DEBTS   AT  CO:\niON   LAW.  319 

the  specialty,  but  before  breach,  was  not  a  good  payment. 
So,  even  where  the  administrator  had  no  notice  of  the  existence 
of  the  bond,  he  was  allowed  for  payments  to  simple  contract 
creditors,  but  not  to  legatees.  The  hardship  of  this  rule  of  law, 
holding  executors  and  administrators  liable  upon  remote  con- 
tingencies, gave  rise  to  the  rule  in  equity,  that  they  could  not 
be  compelled  to  part  with  the  assets,  either  to  legatees  or  dis- 
tributees, without  sufficient  indemnity,  or  impounding  a  suffi- 
cient part  of  the  residuary  estate  for  that  purpose.  It  was  also 
intimated,  that  where  an  executor  passes  his  accounts  in  the 
court  of  chancery,  he  is  discharged  from  further  liability,  and 
the  creditor  is  left  to  his  remedy  against  the  legatees;  and  that, 
to  encourage  this  practice,  no  costs  in  such  case  will  be  visited 
upon  them.  The  former  English  system,  as  above  set  forth,  is 
necessarily  discussed  as  preliminary  to  dealing  with  the  existing 
American  system,  which  is  the  subject  of  succeeding  chapters. 
It  will  there  appear  in  what  way  and  how  far  the  defects  of  the 
old  English  system  have  been  met. 

§  368.  Defences  against  Actions  for  Debts  of  the  Deceased.  — 
Whatever  causes  of  action  survive  the  death  of  the  debtor,  can 
be  brought,  as  far  as  common  law  is  concerned,  against  the 
personal  representative.  Each  creditor  can  institute  an  inde- 
pendent action.  Since  an  adjudication  in  any  one  case  on  a  de- 
fence, such  for  instance  as  the  existence  of  debts  of  a  higher  class, 
is  of  no  force  when  offered  to  a  suit  by  another  creditor,  the  pos- 
sibility, not  to  say  probability,  of  illogical  and  unjust  results 
is  obvious.  The  American  system,  to  be  examined  hereafter, 
does  away  with  most  of  these  difficulties.  But,  as  has  been 
repeatedly  said  before,  the  common  law  is  rarely  whollj^  erad- 
icated; and  so  it  becomes  necessary  to  give  a  sketch  of  pro- 
ceedings at  common  law  upon  suits  by  creditors. 

In  defence  of  an  action  against  him,  the  executor  or  admin- 
istrator may,  in  addition  to  pleading  any  matter  which  the  de- 
ceased might  have  pleaded,  deny  the  representative  character 
in  which  he  is  sued,  or,  admitting  it,  he  may  plead  that  he  has 
no  assets,  or  not  assets  sufficient  to  satisfy  the  plaintiff's  de- 
mand; or  he  may  plead  a  retainer  of  his  own  debt  of  equal  or 
superior  degree;  or  debts  of  superior  degree  to  third  persons. 
It  is  his  duty  so  to  plead  as  to  protect  all  creditors  of  whose 


320         THE  L-^-W  OF  DECEDENTS'  ESTATES.        [§  368 

claims  he  has  notice  in  their  rights,  according  to  the  dignity 
of  their  debts  as  estabhshed  by  law,  and  if  he  fails  to  do  so  he 
becomes  personally  liable. 

If  the  administrator  has  no  assets  to  satisfy  the  debt  upon 
which  the  action  is  brought  against  him,  he  must  plead  x>lene 
administravit,  or  ylene  administramt  prceter,  etc.;  for  a  judgment 
against  him,  whether  by  default  or  on  demurrer,  or  on  verdict 
upon  any  plea  except  plene  administravit,  or  admitting  assets 
to  such  a  sum  and  rien  ultra,  is  conclusive  upon  him  that  he 
has  assets  to  satisfy  such  judgment.  If  he  pleads  either  a  gen- 
eral or  special  plene  administravit,  he  will  be  held  liable  only  to 
the  amount  of  assets  proved  to  be  in  his  hands.  But  if  an 
executor  confesses  judgment  against  himself,  upon  a  miscal- 
culation of  the  amount  of  the  assets,  which  afterwards  appear 
insufficient  to  satisfy  it,  he  will  not  be  relieved  in  equity;  nor 
will  equity  aid  him  if  he  could,  by  reasonable  diligence,  have 
ascertained  the  condition  of  the  estate. 

If,  in  an  action  against  an  executor  or  administrator,  which 
can  be  supported  against  him  only  in  that  character,  he  pleads 
any  plea  which  admits  that  he  has  acted  as  such  (except  a 
release  to  himself),  the  judgment  against  him  must  be  that  the 
plaintiff  recover  the  debt  and  costs,  to  be  levied  out  of  the  assets 
of  the  testator,  if  the  defendant  have  so  much;  but  if  not,  then 
the  costs  out  of  the  defendant's  own  goods.  But  if  the  defend- 
ant pleads  ne  ungues  executor  or  administrator,  or  a  release  to 
himself,  and  it  is  found  against  him,  the  judgment  is  that  the 
plaintiff  recover  both  debt  and  costs;  in  the  first  place,  de  bonis 
testatoris  (or  intestatis),  si,  etc.;  and  next,  si  non,  etc.,  de  bonis 
propriis. 

If  the  defendant  pleads  plene  administramt,  and  is  not  proved 
to  have  assets  in  his  hands,  the  plaintiff  may  confess  the  plea 
and  have  judgment  immediately  of  assets  quando  acciderint, 
or,  as  it  is  sometimes  called,  judgment  of  assets  infuturo,  which 
may  be  either  an  interlocutory  or  a  final  judgment;  if  inter- 
locutory, there  must  be  writ  of  inquiry,  or  other  proceeding  to 
complete  it.  But  if  the  plaintiff  take  issue  on  the  general  or 
special  plea  of  plene  administravit,  and  it  be  proved  against  him, 
he  cannot  have  judgment  of  assets  quando.  By  taking  judgment 
of  assets  quando,  the  plaintiff  admits  that  the  defendant  has 


§  369]  TUE   PAr^IEXT   OF  DEBTS  AT   COMMON   LAW.  321 

fully  administered  to  that  time;  and  since  the  judgment  is  to 
recover  of  the  goods  of  the  testator  which  shall  thereafter  come 
to  the  hands  of  the  executor,  proof  of  the  executor's  receiving 
assets  is  always,  at  the  trial  in  debt  or  scire  facias,  confined  to  a 
period  subsequent  to  the  judgment,  or,  more  accurately,  per- 
haps, to  a  period  subsequent  to  the  issue  of  the  writ. 

§  369.  Effect  of  Admissions  and  Promises  by  Executors  or  Ad- 
ministrators. —  Admissions  or  promises  made  by  executors  or 
administrators  may  be  offered  either  to  bind  the  estate,  or  to 
bind  the  personal  representative  himself  in  his  individual 
capacity. 

^Vhen  offered  to  bind  the  estate,  they  can  only  have  that 
effect  when  made  by  the  personal  representative  in  his  official 
capacity  in  the  performance  of  a  duty  to  which  the  admission 
or  promise  is  pertinent,  so  as  to  constitute  part  of  the  res  gestos. 
Under  the  common-law  system  of  pajdng  debts,  which  we  are 
now  considering,  the  personal  representative  deals  with  each 
creditor  of  the  deceased  directly,  and  promises  so  made  by 
him  may  well  be  considered  as  made  in  the  line  of  his  duty  and 
therefore  binding  on  the  estate.  Thus  it  is  held  that  the  promise 
by  an  executor  to  pay  what  without  such  promise  is  an  equi- 
table obligation  converts  it  into  a  legal  obligation,  enforceable 
at  law;  and  that  the  admission  of  a  former  administrator  of 
payments  made  to  him  are  properly  admissible. 

It  must  be  noted,  however,  that  under  the  prevailing  Amer- 
ican system  of  paying  debts  of  the  deceased,  to  be  discussed  in 
subsequent  chapters,  the  personal  representative  does  not  usu- 
ally allow  claims,  which  are  established  in  judicial  proceedings, 
and  pays  them  only  under  order  of  probate  court.  Under  such 
a  S3'stem  it  would  not  seem  in  the  line  of  the  duty  of  the  personal 
representative  to  make  admissions  (at  least  extra- judicially) 
as  to  the  debts  of  the  deceased,  and  their  admission  in  evidence 
is  doubted  or  negatived. 

"This,"  says  Buck,  J.,  alluding  to  the  statutory  jurisdiction 
of  probate  courts  in  the  matter  of  allowing  claims,  "  has  changed 
the  rule  under  the  old  probate  system,  where  the  whole  matter 
of  allowing  and  paying  claims  against  an  estate  rested  with  the 
personal  representative,  and  where,  if  he  did  not  pay,  the 
remedy  of  the  creditor  was  to  sue  him,  and  where,  after  he  be- 


322  THE   LAW   OF   DECEDENTS'   ESTATES.  [§  370 

came  clothed  with  the  trust,  and  made  admissions  in  the  ex- 
ecution thereof,  they  were  admissible  against  the  estate."  ^ 

But  such  an  admission  or  promise  may  be  used  as  the  basis 
of  a  proceeding,  not  against  the  estate,  but  against  the  personal 
representative  individually.  Widow  and  child,  administering 
the  estate,  are  apt  to  make  promises  to  creditors.  Clearly  a 
promise  to  pay  out  of  the  assets,  or  an  acknowledgment  of  the 
justice  of  the  claim  does  not  create  a  personal  liability.  The 
liability  of  an  executor  or  administrator  arising  out  of  his  own 
promise  to  pay  the  debt  of  the  decedent  may,  if  supported  by 
a  sufficient  consideration,  or  if  otherwise  valid,  be  enforced 
against  him  personally.  The  surrender  of  a  note  made  by 
the  intestate,  forbearance  for  a  certain  or  reasonable  time  to 
the  prejudice  of  the  creditor,  the  possession  of  assets,  and,  a 
fortiori,  any  services  rendered  for  or  goods  furnished  to  the 
executor  at  his  request,  have  been  held  sufficient  to  support 
the  promise,  and  make  him  liable  personally.  But  if  made 
when  there  are  no  assets,  no  other  consideration  moving  to  the 
personal  representative,  it  is  void  like  any  other  nudum  pactum. 
Even  when  resting  on  valid  consideration,  the  promise,  if 
verbal,  cannot  generally  be  enforced,  since  it  is  an  agreement 
which  must  be  in  ^^Titing  under  the  Statute  of  Frauds. 

It  must  not  be  understood,  however,  that  the  personal  lia- 
bility of  the  executor  or  administrator  in  any  such  case  oper- 
ates of  itself  as  a  discharge  or  exoneration  of  the  estate  from 
such  debt.  As  bet«^een  the  administrator  and  the  estate,  the 
debt  is  still  owing;  and  if  the  latter  properly  pay  it,  he  may  re- 
cover the  amount  paid  from  the  estate. 

§  370.  Enforcing  Judgments  de  bonis  testatoris  at  Common 
Law.  —  Judgment  against  an  executor  or  administrator  may 
be  enforced  in  two  ways:  first,  hy  fieri  facias,  or  scire  fieri  in- 
quiry; next,  by  an  action  of  debt  suggesting  devastavit.  If  the 
sheriff  returns  not  only  nulla  bona,  but  also  devastavit,  to  a 
fieri  facias  de  bonis  testatoris,  the  plaintiff  may  sue  out  execu- 
tion by  capias  ad  satisfaciendum,  or  fieri  facias  de  bonis  propriis. 
If  he  return  nulla  bona  generally,  the  ancient  course  was  to  issue 
a  special  WTit  to  the  sheriff,  to  inquire  by  a  jury  whether  de- 
fendant had  wasted  the  goods  of  deceased,  and,  if  devastavit 

»  Johnson  v.  Hoff,  63  Minn.  296,  300. 


§  371]  THE   PAYMENT   OF   DEBTS   AT  COMMON   LAW.  323 

were  found,  a  scire  facias  issued  to  show  cause  why  the  plaintiff 
should  not  have  execution  de  bonis  propriisj  later,  however,  the 
inquiry  and  scire  facias  were  made  out  in  one  writ,  called  a 
scire  fieri  inquiry. 

Upon  a  judgment  quando  acciderint  the  plaintiff  cannot  have 
execution  until  some  assets  come  into  the  hands  of  the  defend- 
ant, when  he  may  bring  an  action  of  debt. 

§  371.  Liability  of  Executors  and  Administrators  in  Equity.  — 
Prior  to  the  introduction  in  England  of  our  American  system,  the 
usual  course  for  avoidance  of  the  intricacies  of  the  common-law 
system  indicated  in  the  preceding  sections  was  for  one  or  more 
creditors  to  file  a  bill  for  himself  or  themselves  and  all  other 
creditors  who  should  come  in  under  the  decree  for  an  account 
of  the  assets  and  a  settlement  of  the  estate;  or,  if  assets  are 
admitted,  and  the  debt  admitted  or  proved,  to  make  an  im- 
mediate decree  for  payment.  Upon  admission  of  assets,  the 
court  will  immediately  order  the  executor  or  administrator  to 
pay  so  much  as  he  admits  having  in  his  hands  into  court.  The 
general  rule  is,  that  an  admission  of  assets  by  an  executor  or 
administrator  can  never  be  retracted  in  a  court  of  equity, 
unless  a  case  of  mistake  be  most  clearly  established;  and  if  the 
allegation  in  the  creditors'  bill  to  this  effect  be  sustained,  the 
plaintiff  will  be  entitled  to  a  decree  for  pajinent  at  once.^ 

1  For  much  fuller  discussion  of  the  old  system,  see  Woemer  on  Ad- 
ministration, Chapter  XL. 


)24  THE    L-V^Y   OF  DECEDENTS'    ESTATES.  [§  372 


PART  III. 

OF  THE  SYSTEM  OF  PAYING  DEBTS  OF  DECEASED 
PERSONS  UNDER  AMERICAN  STATUTES. 

§  372.  Contrast  between  Common  Law  and  American  System.  — 
It  appears  from  the  foregoing  brief  sketch  of  the  common  law 
appHcable  to  the  payment  of  debts  of  deceased  persons,  that 
executors  and  administrators  are  thereby  burdened  with  a  grave 
responsibiUty,  calHng  for  close  watchfulness  and  the  exercise 
of  enlightened  judgment  upon  nice  and  often  doubtful  points 
arising  upon  demands  or  suits  by  creditors.  A  mistake  as  to 
the  proper  plea  to  be  made,  or  the  line  of  defence  to  be  adopted, 
or  whether  defence  ought  to  be  made  at  all,  may  be  fraught  with 
mischievous  results  not  only  in  the  shape  of  costs  and  counsel 
fees,  but  entailing  personal  liability,  even,  though  there  be  no 
assets,  or  assets  not  sufficient  to  meet  the  judgment  rendered. 
It  has  also  been  remarked,  that  the  highly  artificial  and  per- 
plexing system  of  the  common  law  has  been  supplanted  in  most 
States  by  statutory  regulations,  promoting  by  their  simplicity 
and  directness  the  safe,  speedy,  and  inexpensive  settlement  of 
estates,  particularly  in  the  matter  of  pa^-ing  debts.  The  power 
conferred  upon  probate  courts,  in  most  States,  to  apportion 
among  creditors  the  assets  of  the  estate,  after  a  sufficient  period 
has  elapsed  to  enable  them  to  establish  their  claims,  and 
barring  them  from  further  proceeding  against  the  executor  or 
administrator  subsequently  thereto,  simply  and  efficiently  se- 
cures creditors,  heirs  and  distributees,  and  executors  and  ad- 
ministrators in  their  rights,  doing  away  with  the  abstruse 
theory  of  pleading,  and  enabling  the  several  issues  that  may 
arise  in  respect  of  the  liability  of  the  deceased,  as  well  as  of  that 
of  the  personal  representative,  to  be  tried  separately.  Persons 
of  ordinary  intelligence  and  business  capacity  will  generally 
find  but  little  difficulty  in  complying  with  the  duties  imposed 


§  373]  PAYING   DEBTS   OF   DECEASED   PERSONS.  325 

by  law  upon  executors  and  administrators;  and  if  confronted 
with  questions  which  they  are  not  able  readily  to  decide,  touch- 
ing the  rights  of  creditors,  or  the  course  of  their  ow^l  duty,  they 
should  avail  themselves  of  professional  advice,  at  once  to  pro- 
ject themselves  and  their  bondsmen,  and  to  secure  the  rights 
of  creditors  and  distributees  according  to  law. 

§  373.  Notice  to  Creditors  of  the  Grant  of  Letters.  —  As  the 
first  step  toward  the  satisfaction  of  the  claims  against  the  estate 
of  a  deceased  person,  the  statute  requires,  in  nearly,  if  not  quite, 
all  of  the  States,  the  publication  of  notice  of  the  grant  of  letters 
testamentary  to  the  executor,  or  of  administration  to  the  ad- 
ministrator. The  period  within  which  the  publication  must  be 
commenced  ranges  from  ten  days  to  four  months.  The  purpose 
of  this  notice  is  to  enable  creditors  to  present  their  demands 
to  the  administrator  or  court,  as  the  case  may  be.  The  contents 
of  this  notice,  and  the  method  and  proof  of  its  publication  are 
governed  by  the  statutes,  which  must  be  examined  in  each 
State.^ 

The  omission  to  publish  the  notice  to  creditors  is  attended 
by  serious  consequences.  In  most  of  the  States,  though  the 
general  Statute  of  Limitations  is  not  affected,  the  special  bar 
by  limitation  in  favor  of  executors  and  administrators  cannot 
be  pleaded  by  them,  when  they  have  failed  to  publish  this  notice. 

*  See  Woerner  on  Administration,  §  385. 


326  THE  UiW  OF  DECEDENTS'  ESTATES.  [§§  374,  375 


CHAPTER  XLI. 

OF  THE  EXHIBITION  OF  CLAMS  TO,  AND  THEIR  ALLOW.^NCE  BY, 
THE   EXECUTOR   OR  ADMINISTRATOR. 

§  374.  Creditors  required  to  exhibit  Claims.  —  If  tlie  executor's 
or  administrator's  notice  has  been  duly  published,  creditors 
are  required  to  exhibit  their  claims  against  the  estate  to  the 
executor  or  administrator  within  the  time  specified  in  the  notice, 
or  fixed  by  law,  before  they  can  proceed  by  action.  One  of  the 
purposes  of  this  requirement  is  to  enable  the  administrator  to 
adjust  the  claim  without  the  expense  of  compulsory  proceed- 
ing in  court;  hence,  creditors  bringing  suit  before  exliibiting 
their  claim  to  the  administrator,  or  making  demand  for  pay- 
ment, are  liable  for  the  cost  of  such  proceeding.  In  some 
States,  the  plaintiff  will  be  nonsuited,  or  his  action  dismissed, 
if  no  notice  of  the  claim  had  been  given  to,  or  demand  made 
of  the  administrator,  but  even  in  such  States  there  are  rulings 
vdiich  hold  that  the  statute  does  not  apply  to  cases  where  the 
administrator  cannot  comply  with  the  demand,  but  an  order 
or  judgment  of  the  court  is  necessary;  for  it  is  obvious  that  in 
all  such  cases  the  exliibition  would  be  but  an  idle  ceremony. 

A  demand  for  unliquidated  damages  would  be  an  illustration. 
The  respective  statutes  and  rulings  thereunder  must  be  con- 
sulted on  this  point.^ 

§  376.  What  constitutes  a  Sufficient  Exhibition.  —  A  literal 
compliance  with  the  terms  of  the  statute  is  the  only  course  to 
seciu-e  absolute  safety  to  the  creditor,  and  to  relieve  the  admin- 
istrator from  the  perplexing  doubt,  and  even  personal  hazard, 
which  may  arise  if  the  sufficiency  of  the  exhibition  is  not  clearly 
apparent.  For  however  liberally  disposed  he  may  be  to  waive 
technical  defences  and  to  deal  with  creditors  on  the  basis  of 
substantial  justice,  he  stands  as  the  representative  of  all  cred- 
itors as  well  as  of  heirs,  legatees,  and  distributees,  whose  tech- 
nical rights  he  is  not  at  liberty  to  disregard. 

^  See  Woemer  on  Administration,  §  386. 


§  375]  EXHIBITION   OF  CLAIMS   TO   THE   EXECUTOR.  327 

The  utmost  strictness  is  essential  where  the  time  of  the  ex- 
hibition of  the  creditor's  claim  affects  its  priority  over  others. 
It  is  obvious  that  the  administrator  can  exercise  no  discretion 
in  such  case,  and  that  the  sufficiency  of  the  exliibition  can  be 
tested  by  the  statute  alone,  because  whatever  indulgence  is 
extended  to  a  creditor  who  has  not  strictly  complied  with  the 
statutory  requirements  may  —  in  insolvent  estates  must  — 
result  to  the  injury  of  others,  who  have  conformed  to  the  law. 

The  rulings  in  the  different  States  vary  very  much  as  to  the 
strictness  with  which  the  statute  on  the  subject  is  interpreted. 
In  some  States  it  is  held  that  knowledge  on  the  part  of  the  ad- 
ministrator of  the  existence  of  the  claim  is  sufficient  to  prevent 
the  bar  of  the  statute,  and  no  written  notice  is  necessary.  The 
direct  contrary  is  held  in  other  States. 

The  revival  of  an  action,  abated  by  the  death  of  the  defend- 
ant, against  his  executor  or  administrator,  is  equivalent  to  the 
exliibition  of  the  demand  as  of  the  day  when  notice  of  the  re- 
vival or  summons  is  served  upon  him;  it  has  been  so  held  even 
without  statutory  provision  to  that  effect.  Institution  of  suit 
against  an  administrator  for  a  debt  incurred  by  the  deceased, 
although  plaintiff  suffer  a  non-suit  therein,  has  been  held  suffi- 
cient as  an  exliibition  with  a  view  to  fix  the  class  of  the  claim. 
In  other  States  it  is  held  that  notice  cannot  be  based  on  a 
voluntary  non-suit.  Indeed,  the  strict  construction  view  has 
been  pressed  so  far  as  to  find  no  excuse  for  failm-e  to  give  for- 
mal notice  in  the  fact  that  the  administrator  was  fully  aware 
of  the  claim,  and  intentionally  misled  the  creditor,  ignorant 
of  his  duties,  as  to  the  legal  requirement  for  its  presentation.^ 

The  subject  of  this  notice  by  the  creditor  cannot  be  gener- 
alized. Each  case  must  be  examined  under  the  authorities  of 
the  State  in  question.^ 

Where  the  same  person  administers  on  the  estate  of  the  debtor 
as  well  as  of  the  creditor,  it  is  not  necessary  that  a  claim  be 
presented  to  the  administrator  in  one  capacity  to  himself  in 
the  other. 

The  presentation  to  one  of  several  executors  or  adminis- 
trators seems  to  be  sufficient  to  satisfy  the  law  requiring  exhi- 

1  Spaulding  v.  Suss,  4  Mo.  App.  541. 

2  For  many  statutory  details,  see  Woemer  on  Administration,  §  387. 


328  THE   LAW   OF   DECEDENTS'   ESTATES.  [§§370,377 

bition  or  notice  of  the  claim  before  suit  can  be  brought  thereon; 
but  this  exliibition  must  not  be  confounded  with  the  summons  or 
notice  necessary  to  procure  the  allowance,  or  to  commence  an 
action  on  the  claim,  which  will  be  considered  later  on,  in  con- 
nection with  the  subject  of  establishing  claims  against  estates. 

§  376.  Time  for  the  Exhibition  of  Claims.  —  The  time  within 
which  claims  must  be  exhibited  to  the  administrator  begins 
to  run  from  the  date  of  publication  of  the  notice  to  creditors, 
or  from  the  date  of  the  order  requiring  such  publication,  ex- 
cluding the  day  of  the  first  publication  or  order,  or  from  the  last 
day  of  publication;  but  may  be  exliibited  before,  or  without, 
such  notice.  Where  the  cause  of  action  arises  after  the  death 
of  the  debtor,  the  time  is  computed,  generally,  from  its  matur- 
ity. In  some  States  a  saving  is  also  provided  in  favor  of  parties 
who  could  not  be  reached  by  the  publication  on  account  of  ab- 
sence from  the  State. 

Provision  is  made,  in  some  of  the  States,  requiring  the  ad- 
ministrator to  notify  all  persons  holding  claims  against  the 
decedent  to  file  their  claims  at  a  given  time  with  the  administra- 
tor, or  commissioners  appointed  for  that  purpose,  or  the  probate 
court.  In  most  of  these  States,  the  court  may  extend  the  time 
so  limited,  not  exceeding,  usually,  eighteen  months  or  two  years. 
In  a  few  of  them,  the  time  may,  for  good  cause  shown,  be  ex- 
tended beyond  two  years. 

The  exliibition  of  claims,  to  bring  them  to  the  notice  of  ex- 
ecutors and  administrators,  is  to  be  distinguished  from  that 
notice  to  them  the  ser\dce  of  which  performs  the  office  of  a 
summons,  making  them  defendants  in  a  proceeding  to  establish 
the  claim,  requiring  their  attendance  in  court,  or  before  some 
tribunal  ha\'ing  jurisdiction  for  that  purpose.  The  nature  of 
the  notice  required  in  the  latter  view  will  be  discussed  in  treat- 
ing of  the  establishing  of  claims. 

§  377.  Affidavit  of  Creditors  Necessary.  —  In  all  but  two  or 
three  of  the  States  the  claimant  must  aver,  under  oath,  that  the 
amount  claimed  against  the  estate  is  justly  due,  that  no  pay- 
ments have  been  made  thereon,  and  that  no  set-offs  exist  against 
the  same  except  as  stated,  before  the  claim  can  be  allowed. 

If  the  claim  is  held  by  assignment  after  the  death  of  the 
debtor,  the  affidavit  must  be  made  by  both  the  assignor  and 


§  378]  EXHIBITIOX  OF  CLADIS  TO  THE   EXECUTOR.  329 

assignee.  If  required  in  a  proceeding  before  a  court,  it  need  not 
be  in  wTiting,  but  may  be  made  ore  teniis,  or  by  the  claimant  as 
a  witness.  An  affidavit  made  during  the  lifetime  of  a  decedent 
will  not  authorize  the  allowance  of  a  claim,  since  it  might  have 
been  true  when  made  and  not  true  at  the  death  of  the  decedent.^ 

§  378.  Allowance  or  Rejection  of  Claims  by  the  Administrator.  — 
In  many  of  the  States,  the  administrator,  being  satisfied  of  the 
justice  of  a  claim  by  his  owti  knowledge,  or  by  the  affidavit  of 
the  claimant,  or  such  evidence  as  he  may  deem  sufficient,  may 
allow  the  same  without  formal  judgment  or  proceeding  in  court. 
In  a  number  of  States,  the  approval  of  the  probate  court  is 
necessary,  in  addition  to  that  of  the  administrator,  before  it  is 
payable  out  of  the  estate;  in  most  of  them,  however,  there  must 
be  the  judgment  of  some  court  of  ordinary  jiu-isdiction,  or  of 
the  probate  court,  before  payment  of  a  claim  can  be  compelled. 
The  previous  exhibition  to  the  administrator  is,  as  already 
shown,  a  prerequisite  to  such  judgment. 

In  those  States  where  the  administrator  has  power  to  allow 
the  claim  of  his  own  motion,  if  he  does  not  deem  the  claim  a 
just  one,  or  if  some  person  having  a  legal  right  to  do  so  objects 
to  its  allowance,  or  if,  for  any  reason,  he  is  unwilling  to  allow 
the  claim,  he  should  reject  it,  and  remit  the  claimant  to  his 
action  at  law,  or  other  proceeding  allowed  by  statute,  to  estab- 
lish it,  and  the  claimant  must  then  bring  his  action  upon  the 
claim  as  it  was  when  rejected  by  the  administrator. 

If  the  administrator  neither  allow  nor  reject  the  claim  exliib- 
ited  to  him,  it  is  to  be  deemed  rejected.  The  rejection  by  one 
of  several  administrators  is  sufficient  to  authorize  a  suit  upon 
the  claim. 

^  For  further  details,  see  Woemer  on  Administration,  §  390. 


THE   LAW   OF  DECEDENTS'   ESTATES.  [§  379 


CHAPTER  XLIL 

OF  ESTABLISHING  CL.UMS  AGAINST  THE  ESTATES  OF  DECEASED 

PERSONS. 

§  379.  When  Claims  may  be  established  in  Probate  Court.  — 
Having  exliibited  his  claim  to  the  executor  or  administrator, 
and  failed  to  obtain  satisfaction  thereof,  either  because  there 
is  no  authority  under  the  statute  for  him  to  make  the  allowance, 
or  because,  where  he  has  such  authority,  he  is  not  satisfied  of 
the  justice  of  the  claim,  the  creditor's  next  step  is  to  establish 
it  in  some  court  of  competent  jurisdiction  as  a  valid  demand 
jigainst  the  estate.  The  procedure  under  American  statutes 
differs  in  this  respect  from  the  common-law  method  of  obtain- 
ing judgments  or  decrees  against  executors  or  administrators 
chiefly  in  the  nature  of  the  judgment  rendered,  which,  if  in 
favor  of  the  claimant,  is  always  against  the  personal  represen- 
tSLtive  in  his  representative  character,  simply  fixing  the  amount 
of  the  demand  without  reference  to  the  question  of  assets,  and 
determining  its  class  of  priority;  leaving  the  question  of  liabil- 
ity between  the  creditor  and  the  administrator  in  his  personal 
character  to  be  determined  by  a  later  proceeding.  "It  is  one 
thing  to  obtain  an  allowance  and  another  thing  to  obtain  a 
direction  for  the  payment  of  the  claim,"  pithily  says  Chief 
Justice  Elliott,  of  the  Supreme  Coiu-t  of  Indiana.^ 

The  procedure  in  America  is  still  further  simplified  by  vesting 
the  probate  coiu-ts  ^^•ith  power  to  hear  and  determine  all  claims 
against  the  estates  of  deceased  persons  in  a  summary  manner, 
without  the  formality  of  technical  pleading,  yet  seciu-ing  to 
litigants  the  full  benefit  of  trial  before  courts  of  higher  dignity 
by  providing  for  appeals  to  courts  of  plenary  jurisdiction  and 
a  trial  there  de  novo. 

By  these  means  the  common-law  right  of  preferring  one  cred- 
itor of  the  same  class  over  another;  the  right  of  retainer  for  the 
administrator's  o^m  debt;  the  artificial  system  of  pleading  the 
existence  of  a  debt  of  superior  dignity  in  bar  of  an  inferior 

1  Fickle  V.  Snepp,  97  Ind.  289,  293. 


§  3S0]    CLAIMS  AGAINST  ESTATES   OF  DECEASED   PERSONS.        331 

one,  or  i^lene  administravit,  or  rieji  ultra  in  case  of  insufficiency 
of  assets;  the  marshalling  of  assets  or  secmities  by  courts  of 
equity;  the  technical  distinction  between  pleas  admitting  or 
denying  assets,  between  judgments  de  bonis  propriis  and  de 
bonis  intestatis  or  testatoris,  and  judgments  quando  acciderint, 
as  well  as  the  complicated  formalities  of  enforcing  judgments 
against  executors  and  administrators,  are  swept  away.  The 
rights  of  creditors  are  thus  secured;  and  executors  and  admin- 
istrators relieved  of  all  responsibility  except  faithfully  to  present 
any  defence  which  thej^  may  be  aware  of,  on  the  trial. 

In  most  States  probate  courts  have  power  to  try  creditors' 
claims,  but  not  in  all.^ 

§  380.  What  Actions  and  Defences  are  Triable  in  Probate  Courts. 
—  It  appears  from  the  discussion  of  the  method  of  procedure 
in  probate  courts,  that  while  they  possess  no  original  chancery 
powers,  yet  wdthin  the  scope  of  the  jurisdiction  conferred  upon 
them  their  powers  are  not  confined  to  either  legal  or  equitable 
rules,  but  are  to  be  measured  by  the  statutory  grant  alone. 

It  may  be  observed  here,  that  the  spirit  of  the  administration 
law  is  foreign  to  the  remedy  by  attachment  against  an  executor 
or  administi-ator  for  the  debt  of  a  deceased  person;  it  is  accord- 
ingly held  that  attachment  will  not  lie  against  the  assets  of  an 
estate  for  the  decedent's  debt;  nor  a  summary  proceeding  to 
recover  rent  by  distress,  nor  the  summary  proceeding  by  exe- 
cution to  enforce  the  personal  liability  of  a  stockholder  in  an 
insolvent  corporation.  But  the  power  to  try  claims  against 
the  estates  of  deceased  persons  includes  all  actions  upon  which 
a  money  judgment  can  be  rendered,  whether  growing  out  of 
contract  or  tort,  whether  legal  or  equitable  in  their  nature. 
Thus  any  action  for  a  wTong  to  the  property  rights  or  interests 
of  another,  a  false  return  by  the  sheriff,  conversion  of  a  slave, 
or  of  a  trust  fund,  or  for  the  breach  of  a  bond  with  collateral 
conditions,  is  triable  against  the  estate  of  a  deceased  person 
in  the  probate  court. 

A  court  of  equity  will  not,  therefore,  assume  jurisdiction  of  a 
claim  against  an  estate  until  it  has  been  shown  that  the  probate 
court  cannot  afford  the  requisite  relief. 

Since,  as  Ave  have  seen,  judgments  of  probate  courts  are  not 
^  For  lists  of  such  States,  see  Woemer  on  Administration,  §  391. 


332  THE   LAW   OF  DECEDENTS'  ESTATES.         [§§  3S1,  3S2 

collaterally  assailable,  the  allowance  of  a  claim  by  that  court 
is  conclusive  and  entitles  to  the  same  effect  as  the  judgment  of 
any  other  court. 

§  381.  Claiins  against  Estates  of  Deceased  Married  Women.  — 
The  competency  of  probate  courts  to  enforce  liabilities  against 
the  estates  of  deceased  married  women  follows,  without  special 
statutory  authorization  to  that  end,  in  all  States  in  which  the 
acts  of  a  feme  covert,  with  reference  to  her  equitable  property, 
are  held  to  bind  her  personally. 

Viewed  as  a  personal  obligation  of  the  deceased  for  which 
her  general  estate  is  liable,  whether  enforceable  in  legal  or  equi- 
table form  of  action,  it  is  a  proper  subject  for  allowance  in  pro- 
bate courts.    Such  is  believed  to  be  the  law  in  most  of  the  States. 

But  apart  from  statutes,  a  married  woman  can  make  no 
contract  at  common  law.  The  person  who  has  a  claun  against 
a  married  woman  under  what  would  have  been  a  contract  if 
made  with  one  sui  juris,  has  liis  only  remedy  m  ec{uity,  so  far 
as  the  married  v>'oman  has  separate  estate,  in  enforcmg  a  charge, 
in  the  nature  of  a  lien,  against  such  separate  estate.  Where 
the  statute  has  not  modified  tliis  law,  upon  her  death,  the  ques- 
tion arises  whether  her  equitable  estate  can  be  made  liable  to 
creditors  without  the  intervention  of  equity.  On  principle, 
there  seems  to  be  no  difficulty  in  subjecting  such  property  to  the 
control  of  the  probate  coiu't;  the  reason  requiring  the  interposi- 
tion of  equity  courts  during  the  existence  of  the  covertm'e  is  no 
longer  operative,  since  the  probate  court  proceeds  according 
to  equity  as  well  as  law.  But  the  authorities  diverge;  it  is 
held  in  some  States  that  the  jurisdiction  of  probate  courts  is 
peculiarly  adapted  to  deal  with  just  such  cases,  while  in  others 
their  organization  is  held  inadequate  to  reach  them. 

§  382.  Claims  not  matured.  —  In  accordance  with  the  pol- 
icy of  speedy  settlements  of  the  estates  of  deceased  persons, 
aimed  at  in  most  of  the  statutory  provisions  of  the  American 
States,  most  of  them  require  debts  payable,  according  to  the 
contract  entered  into  by  the  deceased,  at  a  future  time,  to  be 
presented  to  the  administrator  and  adjusted  before  their  ma- 
tm-ity.  To  be  proved  and  allowed  as  subsisting  claims,  they 
must  constitute  absolute  debts  running  to  certain  matmity, 
such  as  promissory  notes,  and  the  like. 


§  3S3]    CLAHIS   AGAINST   ESTATES   OF  DECEASED   PERSONS.        333 

The  terms  upon  which  judgment  is  rendered  on  such  claims 
are,  usually,  that  they  be  allowed  for  their  value  at  the  time  of 
rendering  judgment,  Or  upon  rebating  interest  from  the  date  of 
the  judgment  to  the  date  of  maturity;  or  the  parties  may  agree 
either  to  rebate  such  interest  or  let  the  judgment  take  effect  upon 
the  maturity  of  the  debt;  or,  if  the  rebate  be  not  accepted,  the 
court  may  take  bond  from  the  heirs  to  pay  the  debt  v»^hen  due.^ 

§  383.    Contingent  Claims.  —  Claims  not  absolute  or  certain, 
but  depending  upon  some  event  after  the  debtor's  death,  which 
may  or  may  not  happen,  are  not  enforceable  against  executors 
or  administrators  after  they  have  fully  administered,  without 
notice  that  such  claim  has  become  absolute.    Such  claims  may 
generally  be  enforced  against  distributees  and  legatees  to  the 
extent  of  the  property  received  by  them  from  the  estate,  either 
in  equity  or  at  law,  and  the  subject  will  be  treated  elsewhere.^ 
But  if  such  claims  become  absolute,  by  the  happening  of  the 
event  upon  which  they  depend,  before  the  executor  or  adminis- 
trator has  fully  administered,  they  may  be  presented  for  allow- 
ance, and  enforced  like  other  debts  of  the  decedent.    The  law 
in  most  States  is,  that  the  Statute  of  Non-claim,  or  Special 
Limitation,  begins  to  run  from  the  happening  of  the  event  which 
fixes  the  decedent's  liability;  if  the  debt  is  not  established 
against  the  estate  within  such  time,  it  will  be  forever  barred. 
In  a  number  of  States  the  statute  authorizes  or  requires  the 
presentation  of  contingent  claims  before  they  have  become  ab- 
solute, to  the  administrator,  and  the  court  may,  if  sufficient 
cause  appear,  direct  the  retention  of  a  sufficient  sura  in  the 
hands  of  the  administrator  to  pay  such  claim,  either  in  full,  if 
the  assets  are  sufficient,  or  according  to  its  pro  rata  share,  with 
the  proviso  in  some  of  them  that  the  contingency  shall  happen 
in  a  reasonable  time.    Provision  is  also  made,  in  some  States, 
enabling  the  distributees  to  expedite  the  settlement  of  an  estate 
by  giving  bond  for  the  pa^Tnent  of  an  inchoate  or  contingent 
debt,  thus  relie\dng  the  administrator  from  further  responsi- 
bility on  account  thereof;  and  in  others,  contingent  claims  ac- 
cruing after  the  time  fixed  for  the  presentation  of  debts  against 

1  For  illustrations  as  to  this  section,  see  Woemer  on  Administration, 
§393. 

«  See  post,  §§  578-581. 


334  THE   LAW   OF   DECEDENTS'   ESTATES.  [§§384,385 

the  estate  may  be  satisfied  out  of  assets  subsequently  received 
by  the  administrator;  which,  however,  imposes  no  obHgation 
upon  him  to  p^o^•ide  for  tlieir  paivment  if  not  exliibited  to  him 
before  completing  the  administration." 

§  384.  Claims  of  Executors  and  Administrators.  —  The  com- 
mon-lavr  rule  allowing  executors  and  administrators  to  retain 
for  their  own  debts  in  preference  to  other  creditors  of  equal  de- 
gree, is  repudiated,  it  is  beheved,  in  all  the  States.  In  some 
it  is  modified  only  to  the  extent  of  requiring  them  to  retain  an 
amount  proportioned  to  what  other  creditors  in  the  same  class 
may  receive.  In  others  they  cannot  retain  ^^^thout  making 
proof  of  the  validity  of  their  demand  before  the  court,  while  in 
still  others,  if  they  wish  to  enforce  a  claim  against  the  estate 
in  their  charge,  it  must  be  exhibited  to  a  co-executor  or  co-ad- 
ministrator, and  if  there  be  none,  to  the  coiu-t  having  jm-isdic- 
tion,  with  the  affida\'it  required  of  other  creditors,  in  which 
latter  case  it  becomes  the  duty  of  the  judge  to  appoint  some 
discreet  person  to  act  as  administrator  ad  litem  of  the  estate 
and  manage  the  defence.^ 

§  385.  Claims  of  Relatives.  —  Ordinarily  acceptance  of  services 
or  goods  raises  a  presumption  of  a  promise  to  pay  by  the  re- 
cipient which  is  technically  essential  to  recovery.  But  when 
claims  are  made  against  the  estate  of  deceased  persons  by  their 
children,  parents,  brothers,  sisters,  or  other  relatives  or  mem- 
bers of  the  family,  it  is,  to  say  the  least,  possible  that  the  ser- 
vice was  rendered  or  the  property  given  gratuitously.  Indeed 
some  cases  hold  that  when  such  relation  is  shown  there  is  a 
presumption  to  that  effect.  At  all  events  the  claim  cannot  rest 
upon  the  implied  promise  without  some  evidence  on  which 
to  base  it.  The  true  rule  seems  to  be,  and  it  is  so  held  in  most 
of  the  States  in  which  this  question  has  been  decided,  that  there 
may  be  a  recovery  upon  an  implied  contract,  if  the  evidence 
shows  the  services  to  have  been  rendered,  or  the  goods,  board- 
ing, etc.,  to  have  been  furnished  upon  the  mutual  understanding 
by  the  parties  that  compensation  should  be  made  by  the  party 
receiving  the  services,  boarding,  etc.  Wliile  the  mere  expecta- 
tion of  compensation  on  the  part  of  one  rendering  services,  in 

>  See  Woemer  on  Administration,  §  394. 
'  See  Woemer  on  Administration,  §  395. 


§  3S6]     CLAIMS  AGAINST   ESTATES   OF  DECEASED   PERSONS.        335 

the  absence  of  a  corresponding  intention  to  make  the  compensa- 
tion expected  on  the  part  of  the  recipient  of  them,  either  ex- 
pressed or  inferable  from  his  statements  or  conduct,  does  not 
constitute  a  contract,  and  cannot  be  enforced,  yet  there  may 
be  a  contract  without  a  direct  promise  to  pay.  It  is  sufficient 
to  bind  the  party  receiving  the  services,  if  he  induces  them  by 
any  statement  or  conduct  reasonably  indicating  such  intention. 
But  the  evidence  in  all  such  cases  should  be  clear,  distinct,  and 
positive. 

Statutes  providing  that  in  an  action  brought  on  a  note  or 
other  instrument  in  writing,  its  execution  and  signature  are 
to  be  deemed  admitted  unless  denied  under  oath,  have  no  ap- 
plication where  the  party  alleged  to  have  signed  the  instrument 
has  since  died;  proof  of  its  genuineness  must  be  made.  So  also 
where  the  signature  is  by  mark. 

§  386.  Notice  to  the  Administrator  of  Claims  to  be  established. 
—  The  distinction  must  be  kept  in  sight  between  the  exliibition 
of  claims  to  the  executor  or  admmistrator,  and  the  notice  to 
him  of  the  creditor's  intention  to  establish  them  as  valid  de- 
mands in  the  shape  of  a  judgment  or  allov/ance  by  the  court  or 
other  tribunal  having  power  to  that  effect.  The  former,  as 
already  pointed  out,  performs  the  office  of  bringing  the  existence 
of  the  claim  to  the  notice  of  the  personal  representative,  so  that 
he  may  have  an  opportunity^  of  satisfjying  himself  of  its  validit}'. 
and  acting  accordingly,  or  in  some  States,  of  fixing  the  class  of 
the  claim  in  so  far  as  this  may  depend  upon  the  time  of  presen- 
tation; while  the  latter  is  equivalent  to  the  service  of  process 
upon  a  defendant,  so  as  to  subject  the  executor  or  administra- 
tor to  the  jurisdiction  of  the  court  or  other  tribunal,  and  give 
validity  to  the  judgment  or  allowance  that  may  follow.  With- 
out such  notice  a  judgment  or  allowance  against  the  estate  is 
therefore  void.  The  original  presentation  to  the  administrator, 
without  the  notice  that  application  would  be  made  in  court  for 
its  allowance,  is  not  sufficient.  A  claim  represented  by  a  judg- 
ment obtained  against  the  debtor  during  his  lifetime  consti- 
tutes no  exception;  the  same  notice  must  be  given  as  required 
for  other  claims.  Appearance  by  the  administrator,  although 
he  has  not  been  served  with  notice,  is  construed  as  a  waiver, 
and  confers  jurisdiction  on  the  court. 


33G  THE   LAW   OF   DECEDENTS'   ESTATES.  [§  387 

The  notice  need  not  be  couched  in  artificial  or  technical 
terms;  but  will  be  sufficient  if  it  convey  to  the  administrator 
the  information  that  the  claimant  demands  allowance  for  the 
cause-of  action,  which  he  must  set  forth  with  sufficient  certainty; 
and  if  on  a  running  account,  he  must  attach  a  detailed  copy  of 
the  account. 

§  387.  Set-ofEs  in  Probate  Courts.  —  Tlie  affidavit  required  of 
creditors  before  their  claims  can  be  entertained  in  the  probate 
coiu't  compels  them  to  disclose  the  existence  of  any  set-off  or 
coiuiter-claim,  and  the  amount  for  which  they  can  obtiiin  al- 
lowance is  limited  to  the  difference  between  the  amount  claimed 
and  any  simi  in  which  they  may  be  indebted  to  the  estate. 
Hence  the  judgment  can  be  for  the  difference  only,  if  there  had 
been  mutual  dealings  between  the  creditor  and  the  decedent; 
and  this  whether  the  estate  is  solvent  or  insolvent,  whether  the 
debts  are  payable  simultaneously,  or  the  one  in  yrasenti  and 
the  other  in  futuro,  or  whether  there  be  other  claims  superior 
in  dignity  thereby  affected  or  not;  even  if  the  debt  to  the  estate 
would  not  have  been  the  proper  subject  of  set-off  during  the 
lifetime  of  the  parties.  Administrators,  therefore,  should, 
although  not  bound  by  law  to  do  so  in  all  the  States,  exliibit  or 
plead  in  set-off  any  debt  or  liability  of  the  claimant  to  the  de- 
ceased against  a  claim  presented  for  allowance  against  the  estate. 

Contingent  liabilities  cannot,  of  course,  be  allowed  in  set-off. 

But  the  defendant  in  a  suit  by  an  administrator  upon  an  in- 
debtedness accrued  after  the  grant  of  letters  cannot  be  allowed 
to  set  off  a  claim  which  he  may  have  against  the  deceased ;  be- 
cause to  do  so  would  give  him  an  undue  advantage  over  other 
creditors,  if  the  estate  should  prove  insolvent. 

The  administrator  may,  however,  permit  the  pro  rata  divi- 
dend coming  to  a  creditor  to  be  set  off  against  the  amount  due 
from  him  for  property  of  the  estate  sold  by  the  administrator; 
and,  a  fortiori,  the  debtor,  in  an  action  by  the  administrator  for 
a  debt  due  his  intestate,  may  file  in  set-off  a  demand  for  money 
paid  by  him  to  defray  the  funeral  expenses  of  the  deceased. 
The  same  reason  which  makes  the  debt  of  the  deceased  an  im- 
proper set-off  to  the  demands  of  the  administrator,  growing  out 
of  transactions  subsequent  to  the  grant  of  letters,  also  holds 
good  against  a  set-off  based  upon  a  cause  of  action  against  the 


§  3SS]    CLAIMS  AGAINST  ESTATES   OF  DECEASED   PERSONS.        337 

decedent  acquired  after  his  death.  While  it  is  clear  that  an 
administrator  cannot,  to  the  detriment  of  creditors  or  heirs, 
discharge  a  debt  due  the  estate  by  a  cancellation  of  his  individual 
liability  to  the  debtor,  yet  it  may  be  allowable  as  an  equitable 
set-off  where  only  the  rights  of  the  administrator  will  be  affected, 
and  justice  be  done  between  the  parties.  Whether  a  claim 
barred  by  the  Statute  of  Non-claim  can  be  set  off  to  an  action 
by  the  administrator  for  a  debt  due  the  deceased,  is  affirmed  in 
some,  denied  in  other  States.^ 

§  388.  Claimants  as  Witnesses.  —  The  common-law  disability 
of  parties  to  testify  in  their  own  behalf  ha\'ing  been  removed  by 
legislation  in  England  and  America,  it  became  necessary  to 
except  from  the  operation  of  the  enabling  statutes  all  cases  in 
which  one  of  the  parties  had  died,  become  insane,  or  was  for 
any  reason  legally  disabled  from  testifying.  The  object  of 
these  exceptions  is,  in  the  language  of  Judge  Sherwood,  "to 
guard  against  false  testimony  by  the  survivor;  and  in  order 
to  do  this  [the  statute]  establishes  a  rule  of  mutuahty  by  which, 
when  the  lips  of  one  contracting  party  are  closed  by  death,  the 
lips  of  the  other  are  closed  by  the  law."  ^  All  questions  arising 
in  connection  with  the  competency  of  a  party  to  testify  should, 
therefore,  be  solved  in  full  recognition  of  the  purpose  of  the 
enabling  statute  on  the  one  hand,  which  is  to  increase  the  sources 
of  light  by  which  to  discover  the  truth  of  the  respective  allega- 
tions, —  not  to  diminish  them  by  disabling  any  one  from  testi- 
fying who  was  competent  before,  —  and  of  the  object  of  the 
exception  on  the  other,  which  is  to  avoid  the  injustice  that  might 
follow  the  admission  of  testimony  in  his  own  behalf  of  one 
whose  adversary  in  the  proceeding  can  neither  contradict, 
correct,  nor  explain  it  if  false  or  erroneous,  nor  himself  testify 
to  countervailing  facts. 

While  the  spirit  of  the  rule  is  as  stated  above,  it  must  be  re- 
membered that  in  each  case  there  is  a  statute  to  construe,  and 
that  these  statutes  vary  not  only  in  phraseology,  but  in  positive 
provisions.' 

*  See  Woemer  on  Administration,  §  398. 
2  Williams  v.  Edwards,  94  Mo.  447,  452. 

'  For  fuller  discussion  of  the  subject-matter  of  this  section,  see  Woemer 
on  Administration,  §  398. 


338  THE   LAW   OF  DECEDENTS'   ESTATES.         [§§  389,390 


CHAPTER  XLIII. 

OF  THE  TDIE  WITHIN  WHICH   CL.\DIS  MUST   BE   ESTABLISHED. 

§  389.  Time  of  establishing  Claims  with  Reference  to  their  Re- 
jection by  the  Administrator.  —  In  \'arious  States  statutory  pro- 
visions are  made  as  to  the  time  when  actions  for  estabUshing 
creditors'  claims  must  be  brought  with  reference  to  the  time  of 
their  exhibition  to  the  personal  representative.  In  a  number 
of  States  the  action  must  be  brought  within  a  certain  time  after 
exhibition,  fixed  by  the  respective  statutes,  var^-ing  from  sixty 
days  to  nine  months.  In  another  set  of  States,  on  the  other 
hand,  actions  are  not  authorized  until  after  the  expiration  of  a 
certain  period,  deemed  necessary  to  give  executors  and  admin- 
istrators sufficient  time  to  satisfy  themselves  of  the  justice  of 
the  claim,  and  of  the  solvency  or  insolvency  of  the  estate,  so 
as  to  enable  them  to  avoid  unnecessary  litigation  and  expense. 
In  many  States  there  is  no  statutory  provision  on  this  subject, 
and  the  Statute  of  Non-claim,  to  be  next  discussed,  need  alone 
be  consulted.^ 

§  390.  Special  Limitation  of  Time  to  establish  Claims  against 
Estates.  —  In  furtherance  of  the  policy,  emphasized  in  the 
American  States,  of  securing  the  earliest  possible  settlement  of 
the  estates  of  deceased  persons  compatible  with  the  just  rights 
of  creditors,  in  addition  to  the  preference  given  to  diligent  cred- 
itors in  some  of  the  States,  special  laws  of  limitation  are  enacted 
in  most  of  them  applicable  to  demands  against  the  estates  of 
deceased  persons,  known  generally  as  statutes  of  non-claim,  or 
of  short  or  special  limitation.  These  limitations  exist  independ- 
ent of  and  collateral  to  the  general  law  of  limitation  affecting 
alike  the  right  of  action  against  living  persons  and  the  represent- 
atives of  those  deceased.  According  to  these  statutes,  all 
claims  against  deceased  persons  must  not  only  be  exhibited  to 
their  executors  or  administrators,  but  also  enforced  against 
1  See  Woemer,  §  399. 


§  391]        TIME   WHICH   CLAIMS   MUST   BE   ESTABLISHED.  339 

them,  by  institution  of  legal  proceedings,  or  reduced  to  judg- 
ments or  allowances  against  the  estate  within  a  certain  period, 
varying  in  duration  from  four  months  to  several  years,  in  de- 
fault of  which  they  are  forever  barred.  In  some  of  the  States 
discretion  is  vested  in  the  probate  court  to  extend  the  time 
within  which  claims  may  be  proved  beyond  the  period  limited 
by  the  statute. 

It  is  as  much  the  duty  of  executors  and  administrators  to 
insist  on  this  defence  as  any  other;  hence  it  is  held  that  they 
incur  a  personal  liability  to  any  one  who  may  be  injuriously 
affected  thereby,  if  they  fail  to  plead  or  invoke  this  special  bar 
whenever  it  is  applicable;  the  administrator  cannot  waive  the 
statute.  The  failure  of  the  administrator  to  publish  the  notice 
to  creditors  of  his  appointment,  as  required  by  statute,  is  gen- 
erally fatal  to  the  interposition  of  this  plea. 

The  Statute  of  Non-claim,  or  Special  Limitation,  is  not  to  be 
construed  together  with,  or  as  attached  to,  the  general  Statute 
of  Limitations,  but  independently.  Hence  generally,  either  of 
the  statutes,  if  it  has  run  its  course,  although  the  other  has  not, 
may  be  relied  on  as  a  bar.  But  it  is  otherwise  in  some  States, 
where  it  is  enacted  by  statute  or  held,  that  if  the  general  Statute 
of  Limitations  has  not  run  its  course  at  the  time  of  the  debtor's 
death,  the  creditor  may  bring  his  action  at  any  time  within  a 
certain  period  from  the  grant  of  letters,  or  after  the  debtor's 
death,  or  (as  in  Arkansas)  at  any  time  within  the  period  cov- 
ered by  the  Statute  of  Non-claim,  although  the  general  statute 
may  meanwhile  have  completed  its  course.^ 

§  391.  Application  of  the  General  Statute  of  Limitations  to  Ex- 
ecutors and  Administrators.  —  The  rule  requiring  executors  and 
administrators  to  invoke  the  bar  of  the  Statute  of  Non-claim 
whenever  it  is  applicable,  is  not  so  imperative  in  respect  of  the 
general  Statute  of  Limitations,  of  which  Lord  Hardwicke  said 
that  no  executor  was  compellable,  either  at  law  or  in  equity, 
to  take  advantage  against  a  demand  otherwise  well  founded.^ 
This  remark  is  relied  on  in  several  American  States  as  a  correct 
statement  of  the  law,  and  the  principle  is  generally  recognized 
in  the  absence  of  statutory  regulation  of  the  subject.    But  in  a 

1  See  Woemer  on  Administration,  §  400. 

2  Norton  v.  Frecker,  1  Atk.  524,  526. 


340  THE   LAW   OF  DECEDENTS'   ESTATES.  [§392 

number  of  States,  generally  by  statutory  provision,  the  executor 
or  administrator  is  bound  to  set  up  the  bar  of  limitation,  and 
where  the  personal  assets  in  the  administrator's  hands  are  in- 
sufficient to  pay  the  debts,  so  that  it  becomes  necessary  to 
resort  to  the  real  estate  for  this  purpose,  he  is  not  allowed,  in 
some  States,  to  waive  the  bar  of  the  general  statute,  or  the  heirs 
entitled  to  the  real  estate  may  plead  it  if  he  does  not.  A  distinc- 
tion is  also  made,  in  some  States,  whether  the  general  statute  has 
run  its  course  before  the  appointment  of  the  administrator,  in 
which  case  he  is  not  allowed  credit  in  his  account  for  the  pay- 
ment of  debts  so  barred,  or  whether  it  has  only  begun  to  run 
during  the  lifetime,  and  extends,  before  completing  its  course, 
to  a  period  beyond  the  debtor's  death.  And  as  a  general  prin- 
ciple, it  has  been  held  in  some  States  (though  denied  in  others  ^) 
that  during  the  interval  between  the  debtor's  death  and  the 
appointment  of  an  administrator  to  his  estate  the  general  stat- 
ute ought  not  to  run;  and  so  the  time  before  the  expiration 
of  which,  in  some  of  the  States,  the  bringing  of  an  action 
against  an  executor  or  administrator  is  inliibited,  ought  to 
be  added  to  the  time  prescribed  by  the  general  Statute  of 
Limitation. 

§  392.  Application  of  the  Statute  of  Non-claim.  —  The  Statute 
of  Non-claim,  or  of  limitation  specially  to  estates  of  deceased 
persons,  is  in  most  States  applied  more  rigorously  than  the  gen- 
eral Statute  of  Limitation;  the  administrator  cannot  waive  it, 
and  it  has  been  held  that  the  temporary  absence  of  the  executor 
from  the  State  does  not  interrupt  its  course.  And  so  where  an 
administrator  dies,  the  time  intervening  before  the  appoint- 
ment of  his  successor  has  been  held  not  to  interrupt  the  Statute 
of  Non-claim,  because  it  lies  within  the  power  of  the  creditor 
to  cause  the  appointment  of  an  administrator  de  bonis  non,  or 
even  to  serve  as  such  himself.  We  have  seen  that  in  those 
States  where  suit  is  inhibited  against  the  estate  for  a  certain 
period  after  the  grant  of  letters,  such  time  is  added  to  the 
period  of  general  limitation,  but  this  principle  should  not  be 
applied  to  extend  the  time  given  by  the  special  or  non-claim 
statute. 

*  On  the  ground  that  the  creditor  may  compel  administration  at  any 
time.     Baker  v.  Brown,  18  111.  91. 


§392]         TDIE   WHICH   CL.\IMS   MUST   BE   ESTABLISHED.  341 

WTiatever  the  effect  of  promises  or  admissions  made  by  the 
personal  representative  to  the  creditor  may  be  with  regard  to 
the  running  of  the  general  Statute  of  Limitations/  they  will 
not  be  permitted  to  avail  the  creditor  against  the  special 
limitation,  or  Non-claim  Statute  (except  of  course  by  way  of 
allowance  of  the  claim  in  States  where  the  personal  representa- 
tive has  such  power).  It  is  held  in  some  States  that  the  fraud 
of  the  administrator  in  inducing  a  creditor  not  to  probate  his 
claim  until  it  is  barred  by  the  Statute  of  Non-claim  will  not 
exempt  such  creditor  from  its  operation. 

The  statute  runs  alike  against  all  persons,  under  or  over  age, 
or  whether  insane,  non-resident,  or  under  other  disability  of 
whatever  kind,  unless  it  contain  some  saving  clause,  as  it  does 
with  respect  to  non-residents  in  several  States.  In  most  of 
the  States  the  saving  clause  extends  to  infants,  persons  of  un- 
sound mind,  persons  imprisoned,  married  women,  persons  in 
the  military  or  naval  service,  and  the  representatives  of  a  cred- 
itor dying  after  rejection  of  his  claim,  all  of  whom  are  allowed 
a  certain  period  after  the  removal  of  their  disability,  or  an  in- 
crease of  the  time  allowed  by  the  statute  to  establish  their 
claims.  But  in  the  absence  of  a  saving  clause  in  favor  of  the 
representative  of  a  deceased  creditor,  there  can  be  no  allowance 
of  a  claim  not  presented  by  him  before  the  expiration  of  the 
time  limited. 

It  is  also  to  be  remembered  that  the  equity  jurisdiction  of 
federal  courts  is  independent  of  that  conferred  by  the  States 
on  their  o\^ti  courts  and  can  be  affected  only  by  the  legislation 
of  Congress,^  so  that,  in  a  proper  case,  claims  may  be  enforced 
there  which  would  be  barred  in  the  State  courts. 

As  between  a  cestui  que  trust  and  his  trustee  the  Statute  of 
Limitation  does  not  usually  apply;  and  where  a  trustee  dies, 
the  trust  fund,  if  traceable  in  specie,  constitutes  no  part  of  his 
estate,  and  is  recoverable  from  the  administrator  by  the  suc- 
cessor in  the  trust,  or  person  entitled  to  the  fund,  v/ithout  any 
of  the  formalities  prescribed  for  the  establishment  of  a  claim 
against  the  deceased;  but  when  such  trust  fund  is  confused 
with  the  trustee's  own  property,  so  that  its  identity  is  lost,  the 

1  See  ante,  §  369. 

2  See  ante,  §  154. 


342  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  393 

cestui  que  trust,  or  new  trustee,  as  the  case  may  be,  stands  in 
the  position  of  a  general  creditor,  to  whom  the  Statute  of  Non- 
claim  applies  with  equal  rigor  as  against  other  creditors.^ 

§  393.  Effect  of  proving  Claims  after  the  Primary  Period  fixed 
therefor  by  Statute.  —  The  chief  end  of  the  various  statutes 
enumerated  in  the  preceding  section  —  being  the  speedy  settle- 
ment of  estates  in  the  simplest  manner  —  is  perhaps  most  effec- 
tually accomplished  by  the  division  of  the  administration  into 
two  or  more  periods,  determining  the  priority  of  demands  of 
creditors.  This  is  reached  in  the  States  of  Arkansas,  Iowa, 
Kansas,  INIissouri,  and  Texas  by  assigning  to  the  claims  proved 
in  the  later  periods  an  inferior  class.  In  other  States  the  same 
result  is  secured  by  fixing  a  certain  time  when  the  administrator 
is  authorized  to  pay  the  debts  which  have  been  proved,  or  of 
which  he  has  received  legal  notice,  such  paj-ments  constituting 
a  defence  against  the  claims  of  creditors  appearing  subsequently. 
In  yet  other  States  creditors  may  prove  their  demands  after 
the  expiration  of  the  period  of  the  Statute  of  Non-claim,  but 
can  have  satisfaction  only  out  of  such  assets  as  were  not  inven- 
toried, or  known  to  the  administrator  before,  but  were  first 
discovered  after  such  time. 

It  is  obviously  necessary  that  a  time  be  fixed  for  the  payment 
of  debts  by  executors  and  administrators.  When  that  time  has 
arri^'ed,  the  court  must  by  its  order  determine  what  creditors, 
and  how  much  to  each  one,  the  administrator  is  to  pay.  A 
compliance  by  the  administrator  with  such  order  must  be  a 
protection  to  him  against  creditors  presenting  claims  subse- 
quently, no  matter  for  what  reason  they  had  not  appeared 
before.  Hence  the  operation  of  the  saving  clauses  incorporated 
in  the  Statutes  of  Limitations  and  of  Non-claim,  and  the  post- 
ponement of  the  Statute  of  Non-claim  in  cases  of  contingent 
debts  are  confined  to  property  or  assets  not  liable  to  creditors 
whose  rights  have  become  fixed  by  compliance  with  the  legal 
requirements  determining  the  class  and  the  fund  out  of  which 
they  are  to  be  satisfied.  If  such  claims  be  proved  subsequent 
to  a  distribution  to  heirs  or  legatees,  they  may  constitute  a 
demand  enforceable  against  them  to  the  extent  of  the  assets 

1  For  authorities  as  to  the  statements  of  this  section,  see  Woemer  on 
Administration,  §  402. 


§  393]         TME   WHICH   CLAIMS   MUST   BE   ESTABLISHED.  343 

received  by  them;  but  if  they  had  an  opportunity  to  prove  their 
claims  against  the  executor  or  administrator,  and  neglected 
to  do  so,  the  bar  is  complete,  and  protects  heirs  and  legatees  as 
well  as  executors  and  administrators.^ 

1  See  on  this  post,  §§  578-581. 


344  THE  LAW  OF  DECEDENTS'  ESTATES.         [§§  394, 395 


CHAPTER  XLIV. 

OF  CLAIMS  AGAINST  ESTATES  SPECIALLY  ADMINISTERED  AS 
INSOLVENT. 

§  394.  Special  Administration  for  Insolvency  in  Some  States.  — 
In  most  States  no  distinction  is  made  between  solvent  and  in- 
solvent estates;  both  are  administered  in  probate  court  under 
the  same  law.  But  in  fourteen  States  of  this  country  the  statute 
pro\'ides  a  distinct  way  for  administering  insolvent  estates, 
apart  from  the  general  law  applicable  to  solvent  estates.  This 
system  is  analogous  to  the  insolvency  and  assignment  law  pro- 
vided for  living  debtors. 

It  would  seem  that  the  modern  probate  system  with  its  classi- 
fication of  debts,  its  provisions  for  their  allowance  within  a 
certain  time  and  for  the  payment  pro  rata  of  all  of  the  same 
class,  is  fully  equipped  to  meet  the  case  of  insolvency  of  the 
deceased,  and  renders  special  legislation  on  that  head  superflu- 
ous. But,  on  the  other  hand,  it  is  true  that  the  common-law 
system  would  be  inadequate  for  the  case  of  insolvency  of  the 
intestate,  and  that  in  several  States  where  the  modern  system 
is  now  in  force  these  special  insolvency  laws  were  adopted  long 
since,  when  there  was  good  reason  for  their  enactment,  and 
have  kept  their  place  to  these  days. 

§  395.  How  Estates  are  declared  Insolvent.  —  The  declaration 
of  insolvency  in  these  States  is  made  by  the  court  having 
jurisdiction  of  the  estate,  upon  suggestion,  application,  or  re- 
port of  the  administrator,  or  by  creditors.  The  estate,  as  to 
the  method  of  its  settlement,  must  thereafter  be  treated  as  an 
insolvent  estate,  even  though  it  may  eventually  be  found  in 
fact  to  be  abundantly  solvent,  unless  provision  to  the  contrary 
be  found  in  the  statute.  The  declaration  of  insolvency  should 
be  made  as  soon  as  it  appears  that  the  assets  of  the  estate  are 
insufficient  to  pay  its  debts,  which  the  administrator  is,  as  a 
general  rule,  bound  to  know  as  soon  as  the  time  for  presenting 


§  396]    CLAIMS  AGAINST  ESTATES  SPECIALLY  ADMINISTERED.     345 

claims  has  expired;  but  if  he  has  paid  claims  in  full  before  the 
expiration  of  such  time,  he  is  not  thereby  precluded  from  ob- 
taining a  declaration  of  insolvency.  If  he  neglect  to  represent 
the  estate  insolvent,  knowing  it  to  be  so  if  the  claim  presented 
to  him  be  allowed,  because  he  relied  upon  his  defence  against  the 
validity  of  the  claim,  the  judgment  on  such  claim  will  make  him 
liable  for  the  full  amount,  without  regard  to  the  assets  in  his 
hands. 

§  396.  Special  Administration  of  Insolvent  Estates.  —  In  a  few 
States  insolvent  estates  are  settled  in  chancery;  but  upon  the 
declaration  of  insolvency,  the  statute  requires,  in  most  of  the 
States  distinguishing  solvent  from  insolvent  estates,  the  ap- 
pointment of  commissioners,  whose  office  it  is  to  receive  and 
adjudicate  upon  all  the  claims  against  the  insolvent  estate. 
Commissioners  appointed  to  pass  on  demands  against  the  es- 
tates of  deceased  persons,  although  they  do  not  constitute  a 
"court"  in  the  constitutional  sense,  act  judicially,  and  their 
finding,  if  not  appealed  from  or  rejected  by  the  probate  court, 
is  binding  upon  all  parties  concerned.  Their  allowance  of  a 
claim  has,  in  such  case,  the  force  and  effect  of  a  judgment,  so 
that  the  administrator  is  bound  to  pay  the  amount  found  by 
them  to  be  due,  although  the  claim  be  fraudulent  and  fictitious. 

Pro^^sion  is  generally  made  for  an  appeal  from  the  decision 
of  the  Commissioners,  and  for  a  trial  de  novo.  The  commis- 
sioners are  to  report  their  doings  to  the  probate  com-t,  which 
may  hear  exceptions  to  the  report,  made  either  by  the  admin- 
istrator or  by  the  creditors,  and  approve  or  reject  the  same.  It 
is  the  approval  by  the  court  which  gives  the  decision  of  the  com- 
missioners its  quality  as  a  judgment,  but  it  has  been  decided  in 
several  States  that  the  probate  court  has  no  power  to  pass  upon 
the  validity  of  claims  in  insolvent  estates,  and  that  in  passing 
upon  the  report  of  the  commissioners  its  discretion  extends  no 
further  than  to  determine  whether  the  report  presented  is  the 
judgment  of  the  commissioners;  there  may  therefore  be  an 
appeal  from  the  approval  or  rejection  of  the  entire  report,  as 
well  as  from  the  decision  of  the  commissioners  on  any  particular 
claim,  which  causes  of  appeal  must  not  be  confounded  with 
each  other,  as  they  present  different  issues  for  trial  in  the  ap- 
pellate court. 


346  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  397 

The  jurisdiction  of  commissioners  of  insolvent  estates  in 
passing  upon  the  claims  presented  against  them  is  very  much 
like  that  of  probate  courts  in  passing  upon  claims  generally,  and 
they  are  governed  by  the  same  rules  of  evidence. 

§  397.  Time  within  which  Claims  must  be  presented  against 
Insolvent  Estates.  —  In  most  of  the  States  providing  for  special 
administration  of  insolvent  estates,  the  time  limited  for  the 
presentation  of  claims  to  the  administrator,  court,  or  commis- 
sioners of  insolvent  estates  is  shorter  than  the  limitation  for 
proving  claims  against  solvent  estates.  Saving  clauses  are 
found  in  some  of  the  States  in  favor  of  persons  under  disability; 
and  in  most  of  them  the  court  may,  for  good  reason  shown, 
extend  the  time  for  a  period,  the  maximum  of  which  is  also 
fixed  by  statute.^ 

1  The  subject  of  this  chapter  will  be  found  treated  in  detail  in  Woemer 
on  Administration,  §§  404-407. 


§§  39S,  399]      OF  CLADIS  SECURED   BY  COLLATERAL.  317 


CHAPTER  XLV. 

OF  CLADIS   SECURED   BY  COLLATERAL. 

§  398.  Rights  of  Creditors  holding  Collateral  Security  to  Assets 
of  Insolvent  Estates.  —  There  are  two  views  as  to  the  amount 
which  a  creditor  who  has  collateral  or  security  of  any  kind  for 
his  claims  can  prove  up  against  an  insolvent  estate. 

Under  the  equity  rule  the  practice  is  to  allow  the  creditor  to 
prove  his  whole  debt,  without  regard  to  any  collateral  security 
he  may  hold.  If  the  dividend  so  reduces  the  debt  that  the  col- 
lateral seciu-ity  will  more  than  pay  it,  the  personal  representa- 
tive is  bound  to  redeem  for  the  benefit  of  the  general  creditors."  ^ 
The  effect  of  this  rule  gives  to  the  creditor  the  advantage  of  a 
dividend  on  the  full  amount  of  his  claim,  in  addition  to  the  value 
of  any  collateral  security  he  may  hold,  and  throws  the  burden 
of  redeeming  the  same  upon  the  executor  or  administrator  in 
case  both  of  these  funds  exceed  the  amount  of  the  debt.  It 
has  been  followed  in  America  in  a  number  of  States. 

Under  what  is  lalo^^^l  as  the  Bankruptcy  Rule  the  creditor 
is  allowed  to  prove  against  the  general  assets  only  for  the  dif- 
ference between  the  amount  of  the  debt  and  the  value  of  the 
security  he  holds.  This  view  seems  to  be  gaining  ground  in 
the  United  States,  as  being  consonant  with  principles  of  justice, 
and  putting  the  specialty  creditors  and  the  general  creditors 
on  an  equal  footing.  The  subject  is  regulated  by  statute  in  a 
number  of  States.^ 

It  is  held  that  a  bona  fide  lien,  though  not  recorded,  has 
priority  over  the  claims  of  general  creditors  to  the  specific 
property  covered  by  it.^ 

§  399.  Actions  to  foreclose  Collateral  Securities.  —  Actions  to 
foreclose  mortgages,  or  to  enforce  other  collateral  securities  or 

1  1  Story's  Eq.,  §  564  b. 

2  See  Woemer  on  Administration,  §  408. 
«  Dulaney  v.  Willis,  95  Va.  606. 


348  THE   L.\.W   OF  DECEDENTS'  ESTATES.  [§  399 

liens,  are  distinct  from  the  allowance  of  the  debts  so  secured; 
and  since,  generally,  probate  courts  have  no  jurisdiction  of  such 
actions,  the  limitations  and  conditions  imposed  on  the  parties 
enforcing  the  payment  of  simple  debts  against  executors  or 
administrators  are  not  applicable. 

The  lien  may  generally  be  enforced  without  any  action  look- 
ing to  allowance  of  the  claim  against  the  general  assets.  Though 
the  Statute  of  Non-claim  has  barred  the  allowance  of  the  claim 
against  the  estate,  the  lien  may  be  enforced,  if  not  itself  barred 
by  the  general  statute.^  On  the  other  hand,  probating  the  claim 
does  not  affect  the  holder's  right  to  foreclosure.  For  the  same 
reason,  the  right  to  foreclose  gives  the  holder  no  remedy  against 
the  general  assets  of  the  estate,  and  does  not  give  such  a  claim 
a  preference  thereto,  and  his  claim  in  this  respect  for  any  de- 
ficiency is  barred  like  any  other  claim,  unless  he  presents  the 
same  in  proper  time. 

It  is  also  to  be  observed  that  in  most  States  proceedings  to 
enforce  liens  or  foreclose  on  collateral  securities  are  suspended 
by  statute  for  a  certain  period  after  the  debtor's  death,  generally 
six,  nine,  or  twelve  months;  to  an  action  for  the  foreclosiu-e 
before  the  expiration  of  such  time,  a  demurrer  is  proper  and 
should  be  sustained. 

^1  Cowan  V.  Mueller,  176  Mo.  192. 


§  400]       THE   PAYMENT   OF  DEBTS  WHEN  ESTABLISHED.  349 


CHAPTER  XLVa. 

OF  THE  PAYMENT  OF  DEBTS  WHEN  ESTABLISHED. 

§  400.  Nature  and  Effect  of  the  Allowance  or  Judgment  estab- 
lishing Claims.  —  It  should  result  from  the  foregomg  discussion 
of  the  subject  under  consideration,  that  all  of  the  provisions 
requiring  notice  to  be  given  to  creditors  —  the  exhibition  of 
claims  to  the  executor  or  administrator,  allowance  or  rejection 
of  the  claims  either  by  the  personal  representative  or  tribmial 
provided  for  that  purpose,  and  the  judgments  rendered  thereon 
either  by  probate  courts  or  com-ts  of  plenary  jurisdiction  — 
accomplish  the  one  purpose  of  determining  authoritatively  the 
liability  of  the  deceased  debtor  to  his  creditors.  The  satis- 
faction to  which  the  creditors  are  entitled  out  of  the  estate  in 
the  hands  of  the  executor  or  administrator  is  not  thereby  ad- 
judicated, but  is  determined  by  a  subsequent  proceeding,  usu- 
ally taking  the  form  of  an  order  or  decree  to  pay  debts.  This 
featm-e  constitutes  the  crowning  advantage  of  the  American 
system  of  adniinistration  over  that  of  the  common  law,  operat- 
ing so  as  to  simplify  greatly  the  duties  of  executors  and  admin- 
istrators in  the  matter  of  paying  debts  and  marshalling  the 
assets  for  that  purpose,  and  reducing  the  hazard  inseparable 
from  the  common-law  procedure  in  a  corresponding  degree. 

The  determination  of  the  liability  of  the  deceased  debtor  to 
his  creditor,  even  where  it  takes  the  shape  of  an  allowance  or 
judgment  by  a  court,  is  not  generally  enforceable  by  execution 
against  the  decedent's  estate  or  the  personal  representative, 
but  must  be  certified  to  or  filed  in  the  probate  court  for  classi- 
fication, resembling,  in  this  respect,  the  judgment  de  bonis 
intestatis,  or  de  bonis  testatoris,  at  common  law,  but  in  no  manner 
involving  any  question  of  assets,  which  is  determinable  in  the 
probate  court  by  an  independent  proceeding.  Jurisdiction  to 
order  the  payment  of  chims  established,  after  ascertaining  the 
amount  of  assets  in  the  hands  of  the  administrator,  and  mar- 


350  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  401 

shalling  them  according  to  the  dignity  of  the  debts  estabhshed, 
is  vested  in  the  probate  courts  in  ahnost  all  States. 

In  some  States  the  statutes  provide  that  execution  may  issue 
on  judgments  recovered,  notwithstanding  the  debtor's  death; 
but  the  construction  given  them  by  the  courts  tends  to  limit 
the  effect  to  be  given  these  statutes,  as  being  opposed  to  the 
spirit  of  the  administration  law. 

V\liere  the  judgment  rendered  in  the  lifetime  of  the  deceased 
constituted  a  lien  on  specific  property  (as  it  does  with  reference 
to  realty  under  the  Statutes  of  many  States)  such  lien  can  be 
enforced,  in  some  States,  without  resort  to  probate  court,  as 
in  the  case  of  liens  generally,  heretofore  mentioned. 

§  401.  The  Order  or  Decree  to  pay  Debts.  —  When  the  time 
for  proving  or  exhibiting  debts  has  expired,  or  when,  in  those 
States  in  which  classification  is  determined  by  the  time  of  pres- 
entation, the  time  for  proving  the  preferred  class  has  expired, 
it  is  the  duty  of  the  executor  or  administrator  to  lay  before  the 
court  a  complete  statement  of  the  condition  of  the  estate,  show- 
ing what  assets  are  in  his  hands,  and  what  funds  inmaediately 
available  for  the  payment  of  debts;  also  the  amount  of  debts 
proved  against  the  estate,  or  admitted;  what  claims,  if  any, 
have  been  presented  and  not  allowed,  or  which  may  be  in  suit 
and  remain  undetermined;  and  all  other  matters  necessary  to 
enable  the  court  to  ascertain  the  solvency  or  insolvency  of  the 
estate,  and  determine  the  amount  of  the  dividend  if  insolvent. 
The  court  will  thereupon  decree  the  pajonent  of  the  debts 
which  have  been  proved,  in  the  order  of  the  classes  to  which 
they  were  assigned,  each  class  to  be  paid  in  full  before  the  next 
inferior  class  receives  anything;  and  when  the  assets  are  suffi- 
cient to  pay  a  part,  but  not  the  whole,  of  the  debts  of  any  one 
class,  the  creditors  of  that  class  will  be  payable  pro  rata. 

The  order  or  decree  of  payment  so  made  corresponds,  in  some 
measure,  to  the  judgment  de  bonis  propriis  at  common  law; 
because,  having  ascertained  the  amount  of  assets  in  the  admin- 
istrator's hands  available  for  the  payment  of  debts,  and  also 
the  amount  to  which  each  creditor  is  entitled,  the  court,  by  its 
order  or  decree,  renders  judgment  against  the  administrator, 
making  him  liable  personally  to  the  creditor  for  the  specified 
amount,  which  is  enforceable  by  execution  against  him,  and 


§  402]         THE  PAYMENT   OF  DEBTS  WHEN  ESTABLISHED.  351 

by  suit  on  the  bond  of  his  sureties,  and  subjecting  him  thereafter, 
in  most  States,  to  garnishment  by  a  creditor  of  the  creditor 
whom  he  is  ordered  to  pay. 

§  402.  Enforcement  of  the  Order  or  Decree  to  pay  Debts.  —  It 
follows  from  the  nature  of  the  order,  as  already  pointed  out, 
that  the  decree  to  pay  debts,  involving  a  judicial  determination 
of  the  question  of  liability  of  the  estate  to  the  creditor,  and  of 
the  further  question  that  the  executor  or  administrator  is  in 
possession  of  assets  to  discharge  the  same,  must  be  enforceable 
against  the  executor  or  administrator,  either  by  execution  against 
him,  or  by  action  against  him  and  the  sureties  on  his  bond. 
Cumulative  summary  remedies  are  given  the  creditor  by  the 
Statutes  of  some  States,  such  as  a  proceeding  by  scire  facias  in 
the  probate  court  against  the  sureties  on  the  bond  after  a  return 
of  nulla  bona  against  the  personal  representative,  in  addition 
to  the  ordinary  suit  on  the  bond  in  another  court.  In  a  pro- 
ceeding on  the  administrator's  bond,  the  order  or  decree  of  the 
court  is  usually  binding  upon  the  sureties,  who  are  not  permitted 
to  make  any  defence  against  the  same  which  the  administrator 
might  have  made;  but  this  is  held  otherwise  in  some  of  the 
States. 


403]  OF   LEGACIES   AND   DEVISES.  353 


TITLE   SIX. 

OF   LEGACIES   AND   DEVISES. 

§  403.  Distinction  between  Devises  and  I^egacies.  —  Next  after 
the  payment  of  debts,  the  most  important  function  of  executors 
and  administrators  cum  testamento  annexo,  consists  in  giving 
effect  to  the  disposition  made  by  testators  concerning  their 
p^ope^t3^  These  dispositions  are,  in  technical  language,  known 
as  devises,  and  the  persons  in  whose  favor  they  are  made  as 
devisees,  if  the  subject  of  the  gifts  is  real  estate;  while  the  gift 
of  personal  property  by  will  is  called  a  legacy  or  bequest,  and 
the  donee  thereof  is  known  as  a  legatee,  or  legatary.  But  in 
construing  wills  an  incorrect  use  of  these  terms  ^dll  be  disre- 
garded to  meet  the  testator's  intention. 


354  THE   LAW  OF  DECEDENTS*   ESTATES.  [§  404 


PART  I. 
OF   ASCERTAINING   THE   MEANING   OF   WILLS. 

CHAPTER  XLVI. 

OF  THE   GENERAL  RULES  APPLIED   IN  EXPOUNDING  WILLS. 

§  404.  Ascertaining  the  Testator's  Intention.  —  A  last  will  or 
testament  is  the  expression,  in  such  form  as  may  be  prescribed 
by  law,  of  the  testator's  intention,  in  respect  of  his  property,  to 
be  carried  into  effect  after  his  death.  Hence  to  ascertain  this 
intention  is  the  first  duty  of  executors  and  courts  whose  office 
it  is  to  carry  the  will  into  effect.  If  its  provisions  are  clearly 
apparent,  no  recourse  to  technical  rules  is  necessary,  nor,  in- 
deed, permissible,  to  establish  its  contents.  The  testator's  in- 
tention must  be  gathered  from  the  language  employed  in  the 
instrument,  and  from  that  alone.  An  eminent  authority''  on 
testamentary  law  declares  that  "the  question  in  expounding  a 
will  is  not  what  the  testator  meant,  but  what  is  the  meaning  of 
his  words."  ^  It  is  therefore  a  cardinal  principle  in  expounding 
wills,  that  the  intention  of  the  testator  must  be  found  in  his 
expressed  words.  The  grammatical  and  ordinary  popular  sense 
of  the  words  should  be  adhered  to,  unless  it  would  lead  to  some 
absurdity-,  or  repugnance,  or  inconsistency  \\ith  the  rest  of  the 
instrument.  If,  in  so  considering  the  language  of  the  testator, 
an  intelligible  intention  may  be  elicited  therefrom,  neither  tech- 
nical informality,  nor  grammatical  or  orthographical  errors, 
nor  confusion  in  the  arrangement  of  words  arising  from  unskil- 
fulness,  can  be  permitted  to  defeat  it.  Of  course,  the  words 
which  the  testator  employed  should  be  taken  in  the  sense  in 
which  he  understood  them;  hence,  although  technical  words 

*  Williams  Executors  [1078]. 


§  405]  RULES  APPLIED   IN  EXPOUNDING  WILLS.  355 

are  not  necessary  to  give  effect  to  a  testamentary  disposition, 
and  will,  if  used,  be  controlled  by  the  plain  intent  of  the  tes- 
tator, yet  his  words  and  phrases  are  to  be  taken,  prima  facie, 
in  their  technical  sense,  and  receive  that  construction  which  a 
long  series  of  decisions  has  attached  to  them,  unless  it  is  clear 
that  they  were  used  in  a  different  sense. 

The  ambiguity  of  human  speech,  however,  is  such  as  to  make 
it  necessary,  in  many  cases,  to  resort  to  rules  of  interpretation, 
or  of  construction,  to  discover  the  meaning  of  written  instru- 
ments; and  in  no  class  of  instruments  does  this  necessity  occur 
so  often  as  in  that  of  wills,  the  language  of  which  has  been  ex- 
empted from  all  technical  restraint. 

The  adoption  of  rules  by  which  particular  words  and  expres- 
sions, standing  unexplained,  have  obtained  a  definite  meaning, 
and  the  maturity  which  the  sj'stem  of  construction  has  attained, 
has  led  to  the  satisfactory  result  of  considerable  certainty  in 
the  expounding  of  wills. 

§  405.  Rule  requiring  the  Several  Parts  of  a  Will  to  be  construed 
together.  —  It  is  highly  important  to  bear  in  mind  that  the  entire 
will  must  be  construed  together,  its  several  parts  with  reference 
to  each  other,  so  as  to  form,  if  possible,  one  consistent  whole, 
giving  effect  to  every  part  of  the  instrument,  including  the  cod- 
icil or  codicils,  if  there  be  any. 

But  as  between  two  absolutely  conflicting  provisions  the 
latter  prevails.  This  rule,  however,  is  only  invoked  as  a  last 
resort  where  it  is  impossible  to  make  apparently  conflicting 
provisions  consistent  under  any  other  rule  of  construction. 
This  may  be  illustrated  by  the  case  of  the  devise  of  the  same 
land  in  different  clauses  of  the  will  to  different  persons  in  fee. 
Some  coiu-ts  find  here  a  case  of  irreconcilable  repugnancy,  and, 
under  the  second  rule  above  stated,  give  the  land  to  the  devisee 
in  the  later  clause;  other  decisions,  making  the  whole  will  ef- 
fective under  the  rule  first  stated,  give  the  land  to  the  devisees 
in  both  clauses  as  tenants  in  common.^  Where  the  will  admits 
of  two  constructions,  that  is  to  be  preferred  which  will  render 
it  valid;  and  if  the  whole  will  cannot  be  carried  into  effect,  it 
is  not  to  be  rejected  for  that  reason,  but  it  is  to  work  as  far  as 
it  can. 

*  Day  V.  Wallace,  144  111.  256,  citing  authorities  pro  and  con. 


356  THE   LAW   OF  DECEDENTS'   ESTATES.  [§§  406,  407 

So  the  apparent  injustice,  or  the  inconvenience  or  absurdity 
of  a  devise,  if  unambiguous,  affords  no  ground  for  varying  the 
construction;  nor  the  fact  that  the  testator  did  not  foresee 
the  consequences  of  his  disposition ;  nor  can  an  express,  positive 
devise  be  controlled  by  the  reason  assigned,  or  by  subsequent 
ambiguous  words,  or  by  inference  and  argument  from  other 
parts  of  the  will,  or  by  irrelevant  or  inaccurate  recitals;  yet 
recourse  may  be  had  to  such  references,  reasons,  etc.,  to  assist 
in  construction  in  case  of  ambiguity  or  doubt. 

The  holdings  are  not  wholly  in  accord  as  to  whether  revoked 
or  void  clauses  can  be  examined  with  the  view  of  discovering 
the  testator's  intention. 

§  406.  General  Intent  controlling  the  Particular  Intent.  —  It 
is  a  familiar  and  very  important  rule,  also,  that  the  general  in- 
tention is  to  control  the  particular  intention,  if  there  be  an  ir- 
reconcilable inconsistency  between  them.  Whero,  for  instance, 
the  will  directs  a  purpose  to  be  accomplished,  and  also  points 
out  the  means  by  which  the  result  is  to  be  reached,  which 
means  turn  out  to  be  inadequate  to  accomplish  the  end,  so  that 
the  provisions  cannot  both  be  carried  into  effect,  it  is  evident 
that  the  directions  pointing  out  the  means  must  be  sacrificed 
to  the  accomplishment  of  the  end,  if  the  end  can  be  accomplished 
by  other  means;  for  otherwise  the  testator's  intention  is  entirely 
defeated.  Thus,  where  rents  and  profits  of  real  estate  are 
de\ased  for  the  support  of  some  person,  and  prove  insufficient 
for  such  support,  the  devise  of  the  rents  and  profits  will  be 
construed  as  a  direction  to  sell  or  mortgage  the  real  estate,  in 
order  to  obtain  the  end  intended  by  the  testator.^  And  courts 
will  in  some  cases  enlarge,  in  others  cut  down  the  estate,  in 
order  to  carry  out  the  leading  and  prominent  objects  of  the 
testator,  as  indicated  by  a  view  of  the  entire  will  and  all  its 
various  provisions. 

§  407.  Construction  of  Terms  repeated  in  the  Will.  —  The  gen- 
eral rule  requiring  the  same  words  occurring  in  different  parts 
of  an  instrument  to  be  taken  everywhere  in  the  same  sense, 
unless  clearly  contrary  to  the  testator's  intention,  docs  not  ap- 
ply when  the  same  words  refer  to  different  subject-matters. 
Thus,  if  a  word  having  a  technical  meaning  in  the  law  is  accom- 
1  Haydel  v.  Hurck,  72  Mo.  253. 


§§408,409]     RULES  APPLIED   IN  EXPOUNDING  WILLS.  357 

panied  in  one  clause  by  context  showing  that  the  testator  meant 
it  to  be  understood  in  a  different  sense,  while  in  another  clause 
it  is  used  in  reference  to  a  different  subject  wdthout  explanatory 
context,  it  is  to  receive  in  the  latter  clause  its  technical  meaning. 
So  the  same  word  may,  even  if  used  but  once,  be  differently 
construed  in  reference  to  different  subjects  of  gift;  where,  for 
instance,  real  and  personal  estate  are  given  to  one,  and  if  he 
should  die  leaving  no  issue  of  his  body,  then  to  another,  the 
words  "leaving  no  issue,"  when  construed  as  to  the  personal 
estate,  mean  leaving  no  issue  at  the  time  of  his  death,  but  as 
to  the  freehold  they  mean  at  least  under  the  old  rule  an  indefi- 
nite failure  of  issue. 

The  correlative  rule  that  when  a  testator  uses  in  one  place 
words  different  from  or  additional  to  those  used  in  another,  a 
different  or  additional  meaning  must  be  sought,  is  of  slight 
practical  value,  though  logically  sound  enough.  A  testator  is 
prone  to  vary  phrases  without  intending  to  vary  meaning.  His 
intent  must  be  sought  in  the  whole  instrument. 

§  408.  Rule  allowing  Words  and  Limitations  to  be  transposed, 
supplied,  or  rejected.  —  If  it  is  impossible  to  give  a  rational  con- 
struction to  the  words  of  a  will  as  they  stand,  words  and  limi- 
tations may  be  transposed,  supplied,  rejected,  or  changed. 
So  with  regard  to  punctuation.  It  is  evident,  however,  that 
resort  to  this  rule  can  only  be  had  in  very  clear  cases,  in  which 
the  context  leaves  no  room  for  reasonable  doubt  as  to  the  tes- 
tator's intention.  If  this  cannot  be  ascertained  from  the  will 
itself,  the  bequest  or  devise  must  fail,  for  any  alteration  of  the 
testator's  language  would  but  substitute  for  his  will  one  made 
by  the  expounder.  There  are  cases  in  which  there  has  been 
direct  substitution  of  one  word  for  another.^ 

§  409.  Precatory  Words.  —  The  testator  may  devise  or  bequeath 
his  property  with  trusts  as  to  the  whole  or  any  part  of  what  is 
thus  disposed  of.  When  the  testamentary  disposition  of  the 
title  is  accompanied  by  expressions  requesting  or  desiring  the 
legatee  or  devisee  to  do  certain  things  wdth  the  property  thus 
received,  for  the  benefit  of  others,  the  question  constantly 
arises  whether,  on  the  one  hand,  a  trust  has  been  imposed  on 

1  Baird  v.  Boucher,  60  Miss.  326;  State  t-.  Joyce,  48  Ind.  310.  And 
frequently  the  word  "and"  is  substituted  for  "or." 


358  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  410 

the  property  which  the  law  will  enforce,  or  whether,  on  the  other 
hand,  the  gift  is  absolute  in  law,  leaving  the  request  or  desire 
as  a  mere  moral  obligation  with  which  courts  have  nothing  to 
do.  "  The  point  really  to  be  decided  in  all  these  cases  is  whether, 
looking  at  the  whole  context  of  the  will,  the  testator  has  meant 
to  impose  an  obligation  on  his  legatee  to  carry  his  express  wishes 
into  effect,  or  whether,  having  expressed  his  wishes,  he  has 
meant  to  leave  it  to  the  legatee  to  act  on  them  or  not,  at  his 
discretion."  ^ 

English  Equity  (following  Roman  law)  was  inclined  to  adopt 
rules  of  interpretation  on  the  subject,  according  to  which  words 
in  a  will  expressive  of  desire,  recommendation,  and  confidence 
are  of  technical  significance,  importing  a  trust. 

But  this  ancient  learning,  with  its  intricate  technical  distinc- 
tions, is  largely  inapplicable  to  modern  conditions  and  is  there- 
fore modified  in  the  law  of  to-day.  It  is  now  only  a  matter  of 
intention.  In  the  words  of  Justice  Matthews  of  the  United 
States  Supreme  Court:  "If  it  appear  to  be  the  intention  of  the 
parties,  from  the  whole  instrument  creating  it  [the  trust] ,  that 
the  property  conveyed  is  to  be  held  or  dealt  with  for  the  benefit 
of  another,  a  court  of  equity  will  affix  to  it  the  character  of  a 
trust,  and  impose  corresponding  duties  upon  the  party  receiving 
the  title,  if  it  be  capable  of  lawful  enforcement.  No  general 
rule  can  be  stated  that  will  carry  with  it  the  whole  beneficial 
interest,  and  when  it  will  be  construed  to  create  a  trust,  but 
the  intention  is  to  be  gathered  in  each  case  from  the  general 
purpose  and  scope  of  the  instrument."  ^ 

§  410.  Estates  by  Implication.  —  Courts  uphold  bequests  and 
devises  by  implication  whenever  the  intention  of  the  testator  is 
free  from  doubt  though  no  direct  gift  be  made  in  the  will.  If 
there  be  an  erroneous  recital  that  there  is  a  gift  contained  in 
the  will,  the  recital  may  operate  as  being  in  itself  a  gift  by  impli- 
cation of  that  very  property;  but  when  the  erroneous  recital 
refers  to  an  estate  created  by  another  instrument,  that  recital 
cannot  operate  to  create  an  estate  by  implication.^    A  common 

*  Per  Vice-Chancellor  Cranworth  in  Williams  v.  Williams,  1  Sim.  (N.  S.) 
358,  367. 

2  Colton  V.  Colton,  127  U.  S.  300,  310. 

3  Hunt  V.  Evans,  134  111.  496,  502. 


§  411]  RULES  APPLIED   IN  EXPOUNDING  WILLS.  359 

illustration  is  a  devise  to  the  testator's  heir  after  the  death  of  A, 
no  other  disposition  being  made  of  the  property.  The  testator 
has  expressly  excluded  the  heir  during  A's  life,  and  thus  shown 
that  the  property  is  not  to  go  as  intestate  during  A's  life.  The 
only  possible  conclusion  is  that  the  testator  intended  A  to  have 
the  property  during  his  life,  though  it  is  not  so  said  in  express 
terms. 

In  applying  the  foregoing  rule,  the  limiting  principle  of  law 
must  not  be  forgotten,  that  no  words  in  a  will  ought  to  be  so 
construed  as  to  defeat  the  title  of  the  heirs  at  law,  if  they  can 
have  any  other  significance.  If,  therefore,  referring  to  the  last 
illustration  above,  the  land  is  devised  after  A's  death  to  B,  a 
stranger,  and  not  the  testator's  heir,  the  heir  has  not  been 
necessarily  excluded,  as  in  the  first  case  given.  The  testator  is 
considered  intestate  as  to  that  land  during  A's  life.  A  takes 
nothing;  and  the  heir,  as  heir,  has  an  estate  pur  autre  vie  while 
A  lives. 

§  411.  From  what  Period  the  Will  speaks  in  Respect  of  the  Law 
governing  it.  —  The  will,  being  ambulatory  during  the  life- 
time of  the  testator,  cannot  take  effect  before  his  death.  It  is 
therefore  said  to  speak  from  the  testator's  death.  From  this  it 
would  seem  to  follow  that  its  provisions  must  be  construed  with 
reference  to  the  law  in  force  at  the  time  of  the  death  of  the  tes- 
tator; and  such  is  now  almost  universally  recognized  to  be  the 
rule.  The  objection  that  no  statute  can  or  ought  to  have  retro- 
spective effect  is  clearly  inapplicable  to  the  construction  of  a 
will  drawn  and  executed  before  the  enactment  of  a  statute  bear- 
ing upon  its  provisions,  but  taking  effect  by  the  death  of  the 
testator  after  it  is  in  force. 

The  will  disposes  of  the  personalty  of  the  testator  at  the  time 
of  his  death,  but  under  a  technical  rule  of  the  common  law 
no  real  estate  could  pass  by  a  mil  of  which  the  testator  was 
not  the  owner  at  the  time  of  its  execution.  This  rule  has  been 
severely  criticised,  as  calculated  to  mislead  and  defeat  the  in- 
tention of  testators,  and  is  now  abolished  by  statute  in  England, 
as  well  as  in  most,  if  not  all  of  the  States  of  the  Union,  provid- 
ing, substantially,  that  wills  shall  be  construed,  in  respect  of 
both  real  and  personal  estate,  as  if  executed  immediately  be- 
fore the  testator's  death,  or  directing  real  estate  acquired  by 


360  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  412 

the  testator  after  the  date  of  the  will  to  pass  thereby,  if  such 
appear  to  have  been  intended.^ 

§  412.  From  what  Period  the  Will  speaks  in  Respect  of  the  Tes- 
tator's Intention.  —  It  is  plain  enough  that,  when  a  testator 
speaks  of  a  condition  of  things  as  actually  existing,  he  refers  to 
the  period  of  ^\Titmg,  or  executing,  the  will.  Hence,  the  word 
"now,"  or  any  expression  pointing  to  present  time,  must  be 
understood  as  referring  to  the  date  of  the  wdll.  A  gift  for  life 
to  A,  and  after  his  death  to  his  widow,  was  held  to  apply  to  the 
wife  of  A  livmg  at  the  date  of  the  will,  and  not  to  any  wife  who 
might  survive  him.^  A  gift  to  "my  wife"  will,  where  such 
appears  to  be  the  testator's  intention,  refer  to  the  woman  whom 
he  had  long  lived  with  and  held  out  to  be  his  wife,  instead  of  his 
lawful  wife  whom  he  long  ago  deserted  in  a  foreign  country.^ 
And  a  gift  to  the  testator's  child  named,  if  li\'ing  at  the  date  of 
the  will,  would  not,  if  such  child  should  die,  go  to  another  child 
subsequently  born  to  him,  of  the  same  name.^ 

The  above  illustrations  sufficiently  indicate  the  circumstances 
under  wliich  the  language  of  a  testator  must  be  understood  as 
referring  to  the  condition  of  things  existing  at  the  time  of 
WTiting  the  will. 

That  a  testator  can  at  this  day  dispose  by  will  of  real  property 
acquired  after  making  it,  is  shown  in  the  preceding  section. 
This  still  leaves  the  question  for  construction  whether  in  a 
given  case  he  has  actually  done  so.  Unless  its  language  by  fair 
construction  indicates  otherwise,  the  testamentary  disposition 
carries  all  the  property  owTied  by  the  testator  at  the  time  of 
death. 

Of  course,  the  end  aimed  at  in  expounding  a  Mill  in  which 
questions  as  to  after-acquired  property  arise,  is  the  same  as  in 
expounding  any  other  will,  —  to  ascertain  the  intention  of  the 
testator;  hence,  words  which  are  universal  in  their  scope,  such 
as  ".my  whole  estate,"  etc.,  will  carry  after-acquired  property 
without  particular  mention  of  the  period  of  the  testator's 
death;  but  where  the  language  is  not  so  comprehensive,  other 

1  These  statutes,  with  pecuUarities  in  a  few  States,  are  discussed  in 
Woemer  on  Administration,  §  419. 

2  Anschuetz  v.  Miller,  81  Pa.  St.  212,  215. 

3  Pastine  v.  Bonini,  166  Mass.  So. 
J  Foster  v.  Cook,  3  Bro.  C.  C.  346. 


§  413]  RULES  APPLIED   IN  EXPOL^T)ING  WILLS.  361 

words  in  the  will  are  necessary  to  indicate  such  intention,  or 
the  after-acquired  property  will  go  as  if  the  testator  had  died 
intestate.  And  although  the  words  considered  by  themselves 
be  comprehensive  enough  to  carry  any  estate  owned  by  the 
testator  at  the  time  of  his  death,  yet  a  contrary  intention  may 
be  inferred  from  the  context,  and  will  be  enforced. 

§  413.  Extrinsic  Evidence  in  Aid  of  Construction.  —  Extrinsic 
evidence  will  sometimes  be  received  to  aid  in  the  interpretation 
of  a  will.  Courts  are  obliged  to  give  effect  to  every  intention 
which  the  will,  properly  expounded,  expresses;  it  follows  that 
evidence  which  in  its  nature  and  effect  is  simply  explanatory  of 
what  the  testator  has  written  may  be  admitted,  while  none  ■is  ad- 
missible which,  in  its  nature  or  effect,  is  applicable  to  the  purpose 
of  showing  merely  what  he  intended  to  have  written. 

"  That  the  court  may  put  itself  in  the  place  of  the  testator  by 
looking  into  the  state  of  his  property  and  the  circumstances  by 
which  he  was  surrounded  when  he  made  his  will,  is  not  only 
true  as  a  general  proposition,  but  without  such  information 
it  must  often  happen  that  the  will  could  not  be  sensibly 
construed."  ^ 

If  the  language  of  the  vriW,  construed  in  the  strict  and  primary 
sense  of  the  words,  not  shown  by  the  context  to  have  been  used 
in  any  different  sense,  is  void  of  meaning  or  insensible  with 
reference  to  extrinsic  circumstances,  courts  will  admit  exti-insic 
e\'idence  to  see  whether  the  words  be  applicable  to  such  cir- 
cumstances in  any  popular  or  secondary  sense  of  which  they 
may  be  capable.  Thus  it  may  be  shown  that  a  person  or  cor- 
poration was  known  to  the  testator  by  a  name  different  from 
his  or  its  ordinary  or  corporate  name,  in  order  to  show  identity 
with  one  named  in  the  will;  or  that  a  legatee  was  misnamed  by 
the  testator.  But  extrinsic  evidence  is  not  admissible  to  supply 
a  clause  or  word  omitted  by  the  testator,  or  by  the  scrivener, 
nor  to  show  that  an  erroneous  word  was  wTitten  in  the  will 
by  mistake  not  apparent  on  its  face;  nor  to  control  the  meaning 
of  language  neither  ambiguous  nor  inconsistent  with  extrane- 
ous facts;  nor  to  vary  the  terms  of  a  will  which  can  be  carried 
into  effect  as  they  stand. 

It  is  generally  said  that  the  introduction  of  parol  testimony  is 

1  Wilkins  v.  Allen,  18  How.  (U.  S.)  385,  393. 


3G2  THE   LAW   OF  DECEDEXTS'   ESTATES.  [§  413 

excluded  in  the  case  of  a  patent  ambiguity.  A  patent  ambiguity 
is  one  appearing  on  the  face  of  the  will.  A  bequest  in  numerals 
may  leave  it  doubtful  whether  five  dollars  or  five  hundred  dol- 
lars are  given.  A  latent  ambiguity  is  one  which  appears  only 
by  extrinsic  facts.  A  bequest  to  "my  nephew  John,"  when  it 
appears  outside  the  will  that  the  testator  had  two  nephews  of 
that  name  raises  a  latent  ambiguity.  This  rule  against  receiv- 
ing evidence  in  case  of  patent  ambiguities,  it  has  been  said, 
"  is  very  generally  stated  too  broadly,  —  frequently  for  the 
reason  that,  with  reference  to  the  case  before  the  court,  the 
rule,  however  broadly  stated,  is  correct  in  its  application. 
But  it  is  not  true  that  an  ambiguity  appearing  on  the  face  of 
the  paper,  if  that  alone  be  looked  to,  cannot  be  explained  by 
parol."  ^  There  is  a  rule  against  introducing  the  testator's 
declarations,  to  be  discussed  later  in  this  section,  which  includes 
cases  of  patent  ambiguity,  and  is  indeed  chiefly  directed  against 
them.  It  is  also  clear  that  no  patent  ambiguity  wall  justify 
evidence  tending  to  give  the  will  a  meaning  which  the  document 
will  not  bear  on  its  face.  It  is  believed  that  all  well-considered 
decisions  relied  on  to  sustain  the  rule  that  parol  evidence  is  not 
received  to  explain  a  patent  ambiguity  fall  within  one  or  the 
other  of  the  classes  just  mentioned. 

Where  there  is  misdescription  of  person  or  property  in  a  will, 
the  maxim  falsa  demonstratio  non  nocet  permits  the  rejection  of 
part  of  the  description,  provided  what  remains  is  sufficient. 
Here  ambiguities  may  arise.  A  devise  of  "lot  1"  of  a  certain 
block,  followed  by  a  description  by  metes-  and  bounds  which 
covers  lot  2,  presents  such  a  case.  All  authorities  agree  in  re- 
ceiving oral  e\-idence  (except  declaration)  of  the  testators  to  show 
which  property  was  intended.  After  rejecting  the  erroneous 
part,  a  sufficient  description  must  remain  in  the  will. 

The  exception  to  the  rule  stated  at  the  beginning  of  this 
section  is,  that  declarations  of  the  testator  will  not  be  received 
to  ascertain  the  meaning  of  the  will.  Such  evidence  of  declara- 
tions of  the  deceased,  coming  after  his  death,  is  apt  to  be  vague, 
biased,  if  not  worse,  and  not  readily  capable  of  contradiction. 
Its  introduction  would  tend  to  unsettle  the  construction  of 
wills. 

1  Schlottman  v.  Hoflfmann,  73  Miss.  188,  202. 


§  414]  RULES  APPLIED   IN  EXPOUNDING  WILLS.  3G3 

But  to  this  exception  there  is  in  turn  an  exception.  When  the 
will  contains  a  latent  ambiguity,  as  in  the  case  of  the  bequest 
to  "  my  nephew  John,"  when  there  are  two  nephews  of  the  name, 
declarations  of  the  testator  are  received  to  settle  the  ambiguity. 
But  in  case  of  patent  ambiguitj^  the  testator's  declarations  are 
not  received. 

The  admissibility  of  a  testator's  declarations  on  the  inter- 
pretation of  the  will  must  be  distinguished  from  their  admissi- 
bility when  the  issue  concerns  the  validity  of  the  will  when 
fraud,  undue  influence,  or  the  like  are  charged  in  a  proceed- 
ing for  probating  the  will.  That  subject  is  ti-eated  ante, 
§  207. 

§  414.  Testamentary  Donees  as  Classes.  —  In  this  section  and 
the  following  one  the  interpretations  which  courts  have  fixed 
on  certain  terms  of  frequent  use  in  A\dlls  are  given.  Such  settled 
constructions  aid  much  in  making  the  interpretation  of  wills 
certain.  But  it  must  be  remembered  that  in  all  cases  save  the 
few  where  the  construction  given  is  a  rule  of  law  and  not  of 
interpretation  (as  for  instance  the  common-law  holding  as  to 
the  rule  in  Shelley's  case),  these  constructions  are  merely  in 
aid  of  the  all-important  object  of  arri\'ing  at  the  testator's 
expressed  intention.  The  rulings  apply,  therefore,  to  the  terms 
standing  by  themselves,  and  may  easily  be  set  aside  by  the 
context. 

A  legacy  given  to  a  class  immediately  vests  absolutely  in  the 
persons  composing  that  class  at  the  death  of  the  testator,  unless 
the  testator  intended  to  refer  to  a  class  as  existing  at  the  date  of 
the  wdll.  Hence,  as  a  general  rule,  a  gift  to  "  children  "  as  a  class, 
immediately,  intends  those,  and  those  only,  who  answer  this 
description  at  the  death  of  the  testator,  including  children  en 
ventre  sa  mere;  but  if  from  the  language  of  the  will  it  clearly 
appear  that  the  testator  intended  those  only  who  answered  this 
description  at  the  date  of  the  will,  then  the  gift  must  be  con- 
fined to  them.  So  a  gift  to  a  class  which  is  postponed  to  the 
expiration  of  an  intervening  period  after  the  testator's  death 
must  be  shared  by  all  who  constitute  the  class  at  the  expiration 
of  the  intervening  estate,  including  children  born  after  the  tes- 
tator's death ;  the  heirs  of  such  as  may  have  died  after  the  vest- 
ing of  the  gift  are  entitled  to  take  in  their  place.     Children 


304  THE   LAW   OF   DECEDENTS'   ESTATES.  [§  415 

born  after  the  period  fixed  for  the  distribution  have  no  claim, 
although  the  gift  be  to  children  "born  or  to  be  born." 

The  word  "children"  properly  includes  only  the  immediate 
descendants  of  the  person  named,  and  does  not  therefore  usu- 
ally apply  to  grandchildren  or  issue  generally.  But  if  the  word 
"children"  can  have  no  operation,  or  where  it  is  clear  that 
the  testator  uses  the  words  "children"  and  "issue"  indiscrim- 
inately, and  that  he  means  issue  when  he  says  children,  it  will 
be  construed  according  to  his  intention,  as  meaning  or  including 
grandchildren.  When  it  was  shown  that  the  testator  who 
willed  property  to  "children,"  had  none,  but  only  grandchildren, 
the  property  was  given  the  latter.-^ 

It  may  be  mentioned  here,  that,  according  to  the  doctrine 
usually  called  "the  rule  in  Wild's  Case,"  ^  on  a  devise  to  a  man 
and  his  children,  if  he  have  none  at  the  time  of  the  devise,  the 
word  "children"  must  be  taken  as  a  word  of  limitation,  so  that 
he  takes  an  estate  tail;  but  if  he  has  children  living  at  the  time 
of  the  devise,  "children"  must  be  taken  as  a  word  of  purchase 
and  they  take  jointly  with  him.  The  rule,  which  has  been  fol- 
lowed as  the  law  of  England  ever  since,  can,  from  the  nature  of 
its  feudal  origin,  apply  only  to  real  estate;  in  respect  of  personal 
property,  an  absolute  interest  will  pass  where  an  estate  in  tail 
would  be  created  in  real  property. 

The  word  "children"  used  in  a  will  does  not  include  illegiti- 
mate children  or  step-children,  unless  such  appears  to  be  the 
testator's  intention. 

"  Grandchildren "  lyrima  facie  excludes  remoter  degrees,  and 
also  grandchildren  by  marriage,  i.  e.,  the  grandchildren  of  the 
testator's  spouse.  "Nephews"  and  "nieces"  are  construed  on 
the  same  basis,  as  also  "cousins,"  etc. 

§  415.  Classes  designated  by  Technical  Terms.  —  By  the  doc- 
trine embodied  in  what  is  known  as  the  rule  in  Shelley's  Case, 
when  a  freehold  is  given  to  one,  and  by  the  same  instrument  a 
limitation,  either  expressly  or  impliedly,  to  his  heirs,  or  the  heirs 
of  his  body,  the  estate  vests  wholly  in  the  first  taker,  —  if 
limited  to  the  heirs  of  his  body,  a  fee  tail;  if  to  his  heirs,  a  fee 
simple. 

1  In  the  will  of  Scholl,  100  Wis.  650. 

2  Wild's  Case,  Co.,  pt.  6  *  17. 


§  415]  RULES   APPLIED   IN   EXPOUNDING  WILLS.  385 

The  rule  has  been  abolished  in  almost  all  the  States  of  this 
country,  and  in  most  of  them  it  is  supplanted  by  the  statutory 
provision,  that  a  devise,  and  in  some  of  them  also  a  bequest,  of 
property  to  any  person  for  life,  and  after  his  death  to  his  heirs, 
heirs  of  his  body,  or  the  like,  shall  vest  an  estate  for  life  in  the 
former,  with  remainder  in  fee  simple  to  the  latter. 

This  rule  at  common  law  has  nothing  to  do  with  the  testator's 
intention.  "  It  is  a  rule  of  property  and  overrides  the  intention. 
In  fact,  wherever  applicable,  it  may  be  said  that  it  disregards 
the  intention  altogether."^  In  this  country,  however,  it  is 
now,  when  applied  at  all,  generally  regarded  as  a  rule  of  con- 
struction, not  a  rule  of  law,  and  will  therefore  always  give  way 
to  the  clearly  ascertained  intention  of  the  testator,  although 
such  is  not  universally  the  case;  in  a  few  of  the  States  it  is  held 
to  be  a  rule  of  law.  It  is  also  to  be  remembered,  that,  as  to 
personal  property  bequeathed,  it  vests  absolutely  in  the  first 
taker,  and  consequently  goes  to  his  executor  or  administrator, 
whether  he  has  issue  or  not,  by  words  which  would  create  an 
estate  tail  in  real  property. 

Thus,  a  legacy  to  A  and  his  heirs,  or  to  A  and  the  heirs  of 
his  body,  or  a  legacy  in  any  equivalent  expression,  is  an  abso- 
lute legacy  to  A,  and  this  although  the  gift  be  through  an  inter- 
vening trustee;  unless  it  be  clear  from  the  context  that  the  tes- 
tator used  these  words  with  the  intention  of  conferring  a  gift 
upon  the  "heirs,"  etc.,  treating  them,  for  instance,  as  synony- 
mous with  children,  in  which  case  they  take  as  purchasers. 

^Yhe^e  the  M'ords  "heirs,"  "legal  heirs,"  etc.,  are  used  in  a 
will,  not  to  denote  substitution  or  succession,  but  as  designating 
legatees,  they  will  be  construed  in  their  primary  legal  sense,  un- 
less it  appear  from  the  context  that  the  testator  used  them  in  a 
different  sense.  Hence,  gifts  to  heirs,  whether  of  the  testator 
or  of  others,  when  unexplained  and  uncontrolled  by  the  con- 
text, are  gifts  to  the  persons  appointed  by  law  to  succeed  to  the 
property  of  a  deceased  person  in  case  of  intestacy. 

The  word  "issue"  —  popularly  expressing  progeny,  children, 
offspring  —  is  equivalent  in  its  technical  significance  to  "  de- 
scendants," comprehending  every  degree,  unless  restrained  by 
the  context. 

1  Travers  v.  Wallace,  93  Md.  512. 


3C6  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  415 

When  there  is  a  devise  to  several  persons  belonging  to  differ- 
ent classes,  of  different  degrees  of  relationship  to  testator,  and 
the  will  leaves  in  doubt  the  testator's  intention,  distribution 
will  be  made  per  stirpes;  but  where  there  is  but  one  class,  the 
division  should  be  made  x>^r  capita. 

The  term  "descendants"  comprises  every  individual  pro- 
ceeding from  the  stock  or  family  referred  to,  and  does  not, 
without  very  clear  indications  of  the  testator's  intent  by  the 
context,  include  collateral  heirs,  or  heirs  generally,  or  next  of 
kin,  but  only  the  issue  of  the  body  of  the  person  named.  A 
devise  or  legacy  to  descendants,  not  otherwise  qualified,  is 
distributable  between  them  per  capita;  but  the  ascertained  in- 
tention of  the  testator  will  govern  in  tliis  respect  also. 

A  gift  to  "relations,"  without  a  particular  specification,  is 
necessarily  construed  as  a  gift  to  those  who  would  take  the 
estate  in  case  of  intestacy,  because  in  its  widest  sense  it  would 
include  every  degree  of  consanguinity,  and  thus  render  the 
gift  void  for  uncertainty.  "Nearest  relations"  will  exclude 
nephews  and  nieces  when  there  are  surviving  brothers  and  sis- 
ters, and  applies  properly  only  to  those  who  are  of  kin  by  blood; 
hence,  relations  by  marriage  are  not  included  in  a  bequest  to 
"relations"  generally.  But  a  gift  to  be  divided  between  tes- 
tator's relations  and  those  of  his  wife  goes  one-half  to  the  rela- 
tives of  each. 

A  devise  or  bequest  to  "next  of  kin"  goes  to  the  nearest 
blood  relations  in  equal  degree  of  the  person  mentioned,  without 
reference  to  the  Statute  of  Distribution.  Hence,  nephews  and 
nieces  take  under  such  a  gift,  to  the  exclusion  of  the  representa- 
tives of  deceased  nephews  and  nieces,  and  a  surviving  brother 
in  exclusion  of  the  children  of  a  deceased  brother  or  sister. 
\Vhere,  however,  the  testator  gives  to  his  next  of  kin  in  classes, 
and  leaves  the  proportions  doubtful,  the  several  classes  will 
take  according  to  the  Statute  of  Distribution.  Without  refer- 
ence to  anytliing  in  the  context,  the  word  "family"  will  be 
usually  held  to  comprise  the  same  persons  as  next  of  kin  or  re- 
lations in  respect  of  personalty,  and  heirs  in  respect  of  realty. 
It  may  or  may  not  refer  to  the  husband  or  wife,  as  found  to  be 
the  testator's  intention. 

The  term  "legal  representatives,"  or  "personal  representa- 


§  415]  RULES  APPLIED   IN  EXPOUNDING  WILLS.  3C7 

tives,"  applies  strictly  to  executors  and  administrators;  but  as 
it  is  improbable  that  gifts  to  them  should  be  intended  for  their 
own  benefit,  these  words  have  sometimes  been  construed  as 
meaning  the  next  of  kin,  —  a  kind  of  "representative"  in  the 
sense  of  the  Statute  of  Distribution;  particularly  when  it  is 
evident  that  substitution  was  contemplated.  But  if  there  is 
nothing  in  the  context  of  the  will  to  show  that  the  words  "  legal 
representatives"  are  to  have  any  other  than  their  ordinary 
meaning,  they  are  to  be  understood  as  meaning  executors  and 
administrators. 

So  a  gift  to  one  as  "executor"  is  presumed  to  be  given  to 
him  in  his  character  as  executor,  and  hence  fails  if  he  do  not 
become  such;  his  qualification  as  executor  is  construed  as  a 
condition  precedent,  implied  if  not  expressed,  unless  a  different 
intention  may  be  inferred  from  the  nature  of  the  legacy  or 
other  circumstances  arising  in  the  will. 


3G8  1"HE  LAW  OF  DECEDENTS'   ESTATES.  [§  416 


CHAPTER  XLVII. 

TESTAMENTARY    DISPOSITIONS   CONTROLLED   BY   PUBLIC    POLICY. 

§  416.  Gifts  for  Immoral  or  Superstitious  Purposes.  —  It  is 
obvious  that,  if  the  language  of  a  will,  read  wdth  the  view  of 
ascertaining  the  testator's  intention,  is  ambiguous  or  unintelli- 
gible, and  neither  the  ordinary  rules  of  construction  nor  extrinsic 
evidence  where  such  is  applicable  are  sufficient  to  enable  the 
expounder  to  deduce  a  rational  meaning  therefrom,  the  will  is 
to  that  extent  simply  void;  for  if  the  testator  cannot  be  under- 
stood, it  is  the  same  as  if  he  had  not  spoken.  The  same  result 
necessarily  follows  where  the  testator  undertakes  to  do  what 
the  law  prohibits:  a  de\ise  or  legacy  in  contravention  of  law  is 
void.  Hence,  a  gift  in  furtherance  of  any  illegal  purpose  is 
void. 

In  England  statutes  were  passed  under  Henry  VHI  and 
Edward  VI  which  declared  gifts  for  superstitious  purposes 
void.  These  originally  included  pm-poses  not  consonant  with 
the  doctrines  of  the  Established  Church.  Masses  for  souls  of 
the  dead  fell  under  the  ban  of  the  statutes. 

In  the  United  St<ntes,  however,  the  absence  of  church  estab- 
lishments and  of  all  religious  distinctions  and  prohibitions  has 
almost  obliterated  the  legal  cognizance  of  superstitious  uses.  "  It 
is  neither  for  the  legislature  nor  the  judiciary,  in  this  State,  to 
discriminate  and  say  what  is  a  pious  and  what  a  superstitious 
use.  To  do  so  would  necessarily  infringe  upon  the  great  con- 
stitutional guaranty  of  a  perfect  freedom  and  equality  in  all 
religions."  ^  Text-^^Titers  and  courts  incline,  generally,  to  the 
view  that  in  the  United  States  there  can  be  no  such  thing  as  a 
"superstitious  use,"  in  the  sense  of  the  English  statute.  In 
Pennsylvania,  however,  on  the  ground  that  Christianity  in  a 
broad  sense  is  still  part  of  the  common  law,  the  court  refused 
1  Gass  V.  Wilhite,  2  Dana  170,  176. 


§  417]      DISPOSITIONS   CONTROLLED   BY   PUBLIC    POLICY.  369 

to  enforce  a  gift  to  an  "  Infidel  Society,"  the  object  of  which  was 
the  promotion  of  atheism  and  infidehty.^ 

Bequests  for  masses  for  the  dead  are  never  avoided  in  this 
country  on  the  ground  that  they  are  for  superstitious  uses. 
The  legal  difficulties  in  connection  with  their  recognition  are 
discussed  a  few  sections  further  on. 

§  417.  Gifts  prohibited  by  the  Statute  of  Mortmain.  —  The 
practice  of  absorbing  lands  in  the  hands  of  ecclesiastics  in  per- 
petuity, thereby  withdrawing  them  from  public  and  feudal 
charges,  led  to  a  limitation  of  the  rights  of  corporations,  sole 
and  aggregate,  taking  away  their  common-law  capacity  of 
acquiring  and  holding  lands  without  the  king's  license,  by  a 
series  of  statutes  known  as  statutes  of  mortmain.  These,  apply- 
ing only  to  real  property,  were  originally  levelled  at  the  religious 
houses,  as  they  were  introduced  during  the  establishment  and 
grandeur  of  the  Roman  Church ;  but  the  later  acts  included  lay 
corporations  as  well,  and  made  lands  conveyed  to  any  third  per- 
son for  the  use  of  a  corporation  liable  to  forfeiture,  in  like  manner 
as  if  conveyed  directly  in  mortmain. 

These  acts  are  not  recognized  in  this  country  as  part  of  the 
common  law. 

The  act  popularly  kno-^m  as  the  Statute  of  Mortmain,  more 
accurately  the  "Charitable  Uses  Act,"  ^  prohibits  the  gift, 
conveyance,  or  settlement  to  or  upon  any  person  or  body  cor- 
porate of  real  property,  or  of  personal  property  to  be  laid  out 
in  the  purchase  of  real  property,  in  trust  or  for  the  benefit  of 
any  charitable  uses  whatever,  except  by  deed  executed  with 
certain  formalities  and  enrolled  a  certain  time  before  the  donor's 
death. 

This  act  is  in  support  of  a  public  policy  not  connected  with 
that  of  ancient  mortmain  laws  just  mentioned.  It  does  not  at- 
tempt to  restrain  accumulations  by  corporations,  but  seeks  to 
protect  the  normal  beneficiaries  of  the  dying  man  from  his 
improvident  charitable  gifts.  The  statutes  of  many  States  in 
this  country  pursue  the  same  object  in  various  ways. 

In  some  States  there  is  a  restriction  as  to  the  fractional  part 
of  the  estate  which  can  be  left  for  charitable  purposes,  depend- 

1  Zeisweiss  v.  James,  63  Pa.  St.  463,  471. 

2  9  Geo.  II,  ch.  36. 


370  THE   LAW   OF  DECEDEXTS'   ESTATES.  [§  418 

ent  in  some  States  upon  the  nearness  of  the  relationship  of  the 
natm-al  claimants,  the  distributees.  In  other  States  the  creation 
of  valid  charities  must  be  by  document  executed  at  least  a 
certain  time,  prescribed  by  statute,  before  the  donor's  death. 
These  and  other  limitations  on  the  power  to  dispose  of  property 
for  charity  must  be  studied  in  the  respective  statutes.^ 

§  418.  Corporations  as  Testamentary  Donees.  —  It  is  self-evi- 
■dent  that  any  person,  whether  natural  or  corporate,  competent 
to  hold  property,  may  be  a  legatee  or  devisee  under  a  will, 
unless  expressly  prohibited  by  law.  Such  an  ex-press  prohibition 
to  "bodies  politic  and  corporate"  is  contained  in  the  explana- 
tory statute  to  the  original  act  authorizing  the  devise  of  lands 
in  England;  hence  devises  to  corporations,  whether  aggregate 
or  sole,  either  beneficially  to  them  or  in  trust,  were  held  void, 
and  the  devised  lands  descended  to  the  heirs.  The  late  Statute 
of  ^Yills  omits  this  prohibition  to  corporations  to  take  land  by 
devise;  hence  they  are  now,  in  England,  as  capable  of  taking  as 
natural  persons.  But  their  disability  to  hold,  arising  under 
different  statutes,  is  not  thereby  removed,  and  their  capability 
to  hold  lands  now  depends  upon  a  license  from  the  crowm,  ac- 
cording to  a  statute  enacted  to  protect  against  forfeiture  under 
the  mortmain  acts. 

Such  is  not  the  law  in  the  United  States,  where  none  of  these 
acts  are  in  force.  The  powers  of  a  corporation  here  are  fixed 
by  its  charter  and  the  law  underlying  it.  In  the  absence  of 
express  statutory  enactment,  it  is  believed  that  the  right  of  a 
corporation  to  take  under  a  \^ill  is  not  to  be  distinguished  from 
its  right  of  acquisition  by  other  means. 

But  provision  is  made  by  statute,  in  most  States,  regulating 
the  capacity  of  corporations  to  hold  property,  especially  real 
estate,  and  the  extent  to  which  they  may  take  property  as  tes- 
tamentary beneficiaries,  particularly  for  charitable,  eleemosy- 
nary, or  religious  purposes. 

So  it  may  be  stated  that  the  value  or  amount  of  real  estate 
which  a  religious  corporation  may  own  is  restricted  in  many 
States.  It  is  held  in  New  York,  on  a  careful  examination  of  the 
question,  that  a  devise  or  bequest  to  a  corporation  of  property 
which  exceeds  the  amount  or  value  which  the  corporation  is 
1  For  further  details,  see  Woemer  on  Administration,  §  425. 


§§419,420]     DISPOSITIONS  CONTROLLED  BY  PUBLIC  POLICY.      371 

permitted  to  take,  will  be  void  for  the  excess;  and  the  heirs  or 
next  of  kin  can  raise  the  question.  The  same  doctrine  is  main- 
tained in  some  other  States;  but  the  contrary  view  is  announced 
in  other  jurisdictions,  holding  that  only  the  State  in  a  direct 
proceeding  can  raise  the  question  of  the  validity  of  the  gift. 

In  New  York  the  statute  provides  that  "  no  devise  to  a  cor- 
poration shall  be  valid,  unless  such  corporation  be  expressly 
authorized  by  its  charter  or  by  statute  to  take  by  devise."  A 
devise  to  a  foreign  corporation  of  lands  in  that  State  is  void, 
although  the  corporation  was  authorized  by  its  charter  to  take 
by  devise;  but  a  bequest  of  personalty  to  such  a  corporation  will 
be  enforced,  if,  by  the  law  of  its  creation,  it  has  authority  to 
acquire  property  by  devise  or  bequest.^ 

§  419.  Corporations  as  Donees  in  Trust.  —  No  corporation  can 
be  seised  of  lands  in  trust  for  any  purpose  foreign  to  its  institu- 
tion, though  it  may  take  as  trustee  if  the  object  of  the  trust  be 
consistent  with  the  purposes  of  the  corporation.  The  applica- 
tion of  this  test  occasions  most  difficulty  when  the  corporation 
is  a  municipal  or  purely  governmental  body.  It  is  clear  that 
no  purely  private  trust  can  fall  within  the  purview  of  the  pur- 
poses of  such  a  corporation.  Judicial  opinions  may  differ  as 
to  what  falls  within  the  scope  of  the  purposes  of  a  corporation. 
Such  was  the  case  under  the  Mullanphy  will,  devising  realty  in 
Missouri  and  New  York  to  the  City  of  St.  Louis  to  aid  poor 
emigrants  to  the  West  passing  through  St.  Louis.  The  city 
was  held  competent  to  take  in  IMissouri,^  while  the  contrary 
result  was  reached  in  New  York.^ 

§  420.  Rule  against  Perpetuities.  —  Under  the  Statute  of  Uses 
and  under  the  Statute  of  Wills  it  became  possible  to  tie  up  the 
title  to  land  almost  indefinitely :  a  result  which  was  not  possible 
under  the  technical  rules  of  the  common  law  as  it  stood  before 
passage  of  these  statutes.  The  grave  situation  was  met  by 
what  was  virtually  judicial  legislation.  The  rule,  as  finally 
formulated  by  the  judgment  of  the  House  of  Lords,  fixes  the 
utmost  period  within  which  an  executory  devise  may  take  effect 
to  be  a  life  or  lives  in  being  and  twenty-one  years  thereafter, 

^  See  for  fuller  treatment,  Woemer  on  Administration,  §  426. 

2  Chambers  v.  City  of  St.  Louis,  29  Mo.  543,  572. 

3  Boyce  v.  City  of  St.  Louis,  29  Barb.  650,  654. 


372  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  420 

together  with  the  period  of  gestation  actually  existing;  a  child 
en  ventre  sa  mere  being  considered  as  a  life  in  being.  The  rule 
applies  to  estates  under  the  Statute  of  Uses  (springing  and 
shifting  uses)  as  well  as  to  those  under  the  Statute  of  \Yills 
(executory  devises). 

The  application  of  the  rule  must  be  tested  by  possibilities 
at  the  date  when  the  will  goes  into  effect  (the  testator's  death) 
and  not  by  subsequent  actual  events.  If  circumstances  can  be 
conceived  as  of  that  date  under  which  the  estate  would  not  vest 
within  the  time  fixed  by  the  rule,  the  limitation  over  is  bad. 

According  to  this  rule,  a  gift  to  unborn  persons  postponed  for 
a  fixed  term  exceeding  twenty-one  years  is  void,  although  not 
preceded  by  a  life;  for  a  fixed  term  of  years,  however  short, 
cannot  be  resorted  to  instead  of  the  life  or  lives  allowed  by  the 
rule. 

If  the  limitation  over  is  to  a  class  as  to  some  members  of  which 
it  might  possibly  not  vest  until  after  the  prescribed  period,  it 
is  void  as  to  all,  if  the  shares  cannot  be  defined  or  separated,  as 
they  cannot  be  when  all  who  are  intended  to  take  must  be  con- 
sidered in  estimating  them,^  But  this  case  must  be  distinguished 
from  a  dexdse  in  which  the  gift  is  to  the  indi\'idual,  though  class 
terms  are  used  in  the  designation.  A  devise  of  ten  acres  to  each 
of  the  testator's  nephews,  now  li\ang  or  hereafter  born,  for  life, 
with  limitation  over  on  the  death  of  each  such  nephew  to  his 
children  in  fee,  would  be  good  as  to  the  children  of  nephews 
living  at  the  testator's  death,  and  bad  as  to  the  children  of  such 
nephews  as  were  born  subsequently. 

The  rule  requires  the  vesting  of  title  wdthin  the  prescribed  time; 
it  is  not  concerned  with  the  period  when  enjoyment  hy  possession 
may  begin.  Thus  a  gift  "to  my  son  (and  his  wife,  if  he  should 
marry)  and  after  their  decease  to  their  children"  is  valid  as  to 
the  children;  for  their  title  vests  on  the  death  of  their  father, 
the  son  of  the  testator.^  It  is  easy  to  imagine  a  case  where  the 
children  of  the  testator's  son  would  not  enter  on  enjoyment  of 
their  property  till  long  after  the  period  fixed  by  the  rule.  But 
this  in  no  wise  affects  their  right. 

In  a  devise  to  A,  and  on  "failure  of  his  issue"  to  B,  the  rule 

1  Coggins'  Appeal,  124  Pa.  St.  19. 

2  Gates  V.  Seibert,  157  Mo.  254. 


§  421]  DISPOSITIONS  CONTROLLED  BY  PUBLIC  POLICY.  373 

formerly  well  established  was  to  construe  "failure  of  issue"  as 
indefinite  failure  of  issue,  that  is,  as  meaning  the  extinction  of 
all  descendants  at  a  period  however  remote.  As  this  construc- 
tion gave  A  a  fee  tail,  and  a  fee  simple  can  be  limited  on  a  fee 
tail  at  common  law,  the  limitation  to  B  was  good.  But  since 
most  States  have  now  done  away  with  the  fee  tail  as  it  stood 
at  common  law,  such  a  devise  to  B  offends  against  the  rule  as 
to  perpetuities.  The  modern  tendency,  set  forth  in  the  stat- 
utes of  a  number  of  States,  is  to  construe  "failure  of  issue"  as 
definite  failure  of  issue,  that  is,  as  meaning  the  absence  of  issue 
at  the  death  of  the  first  taker.  Under  such  a  construction  it 
will  be  seen  that  the  limitation  over  is  good,  as  far  as  the  rule 
concerning  perpetuities  is  concerned. 

The  rule  against  perpetuities  is  recognized  in  all  States  of 
this  country.  In  many  States  legislation  has  made  the  rule 
more  stringent  than  at  common  law.  Thus  at  common  law  the 
limitation  may  be  made  dependent  on  an  indefinite  number  of 
lives.  In  many  States  the  statutes  provide  that  the  limitation 
cannot  depend  on  more  than  two  lives.^ 

§  421.  Accumulation  of  the  Income.  —  The  romantic  disposi- 
tion made  in  the  celebrated  will  of  Peter  Thellusson,  whereby 
the  income  of  his  ample  estate  was  to  be  accumulated  and  added 
to  the  corpus  for  a  period  covering  the  life  of  every  child  and 
more  remote  descendant  born  or  en  venire  sa  mere  during  his 
lifetime,  and  then,  swelled  to  princely  magnitude,  to  go  to  some 
unknown  scion,  led  to  the  enactment  of  a  statute^  limiting  the 
accumulation  of  rents,  issues,  profits,  or  produce  of  any  estate 
to  the  life  or  lives  of  the  donor  or  donors,  or  the  term  of  tu'enty- 
one  years  from  their  death,  or  the  minority  of  any  person  in 
esse  at  the  time  of  such  death,  or  the  minority  of  those  who  would 
be  entitled  to  the  produce  if  of  age.  Similar  limitations  as  to  the 
accumulation  of  property  have  been  enacted  in  some  of  the 
American  States.^ 

In  the  absence  of  statutory  provisions  on  the  subject,  accumu- 
lations are  in  the  United  States  still  governed  by  the  common 

*  The  various  statutory  changes  are  given  in  Woemer  on  Adminis- 
tration, §  427. 

2  39  and  40  George  III. 
J  See  Woemer  on  Administration,  §  428. 


374  THE  LAW  OF  DECEDENTS'   ESTATES.  [§  422 

law,  because  the  statute  of  39  &  40  Geo.  III.  was  enacted  after 
the  declaration  of  American  independence,  and  is  of  no  force 
here. 

§  422.  Gifts  to  Charitable  Uses.  —  Testamentary  gifts  to  char- 
itable uses  are  distinguishable  from  other  testamentary  dis- 
positions in  several  particulars,  owing  to  the  high  favor  with 
which  the  law  regards  them,  and  which  demands  their  most 
liberal  construction  with  the  view  of  accomplishing  the  intent 
and  purpose  of  the  donor;  and  this  to  an  extent  which  will 
uphold  and  carry  into  effect  trusts  to  charitable  uses  which 
cannot  be  upheld  in  ordinary  cases. 

The  preamble  of  the  English  Statute  of  Charitable  Uses  ^ 
furnishes  the  basis  for  the  test  of  what  constitute  charitable 
uses.  All  purposes  are  charitable  which  are  within  the  principle 
and  reason  of  this  statute;  including,  self-evidently,  many 
objects  neither  mentioned  nor  distinctly  referred  to  therein. 

The  definition  of  legal  charities  formulated  by  Justice  Gray 
seems  sufficiently  comprehensive  to  include  all  cases  that  may 
come  under  the  rules  applied  to  charities,  and  to  exclude  all 
cases  to  which  they  are  not  applicable.    It  is  as  follows: 

"  A  charity,  in  the  legal  sense,  may  be  more  fully  defined  as 
a  gift,  to  be  applied  consistently  wdth  existing  laws,  for  the  ben- 
efit of  an  indefinite  number  of  persons,  either  by  bringing  their 
minds  or  hearts  under  the  influence  of  education  or  religion,  by 
relieving  their  bodies  from  disease,  suffering,  or  constraint,  by 
assisting  them  to  establish  themselves  in  life,  or  by  erecting  or 
maintaining  public  buildings  or  works,  or  otherwise  lessening 
the  burdens  of  government."  ^ 

Gifts  of  liberality  and  benevolence,  or  private  charities,  are 
not  included  in  the  class  of  testamentary  dispositions  which 
are  favored  by  the  law  to  the  extent  of  excepting  them  from 
the  rules  governing  ordinary  devises  and  bequests  in  respect 
of  the  rule  against  perpetuities,  mortmain,  accumulations,  cer- 
tainty of  intent  as  to  the  beneficiaries  and  method  of  execution, 
etc.  Charities,  in  the  legal  sense,  must  contain  some  element  of 
public  benefit,  open  to  an  indefinite  and  vague  number  of  per- 
sons, the  particular  beneficiaries  to  be  selected  or  ascertained 

1  43  Eliz.  c.  4. 

*  Jackson  v.  Phillips,  14  Allen  539,  556. 


§§  423,  424]     DISPOSITIONS  CONTROLLED  BY  PUBLIC  POLICY.     375 

by  a  method  or  agency  indicated  by  the  testator.  So  a  de\'ise 
to  a  corporation  to  distribute  the  rents  among  twenty-four 
persons  named,  as  they  may  need  assistance,  is  not  a  charity.^ 
It  has  been  held  that  an  association  for  the  purposes  of  mutual 
benevolence  among  its  members  only  does  not  constitute  an 
association  for  charitable  uses.^  So  a  trust  for  the  erection  of  a 
monument,  tomb,  or  vault  for  the  donor  or  his  family,  or  for 
keeping  them  in  repair,  is  not  generally  held  to  be  charitable 
use,  but  will  be  enforced  if  not  void  as  a  perpetuity.  A  bequest 
for  a  public  cemetery,  on  the  other  hand,  is  a  clear  technical 
"charity." 

§  423.  Force  of  the  English  Statute  of  Charitable  Uses  in  Amer- 
ica. —  In  England  the  question  of  what  is  a  charitable  use  is 
determined  with  reference  to  the  Statute  of  43  Eliz.  In  a 
number  of  States  in  this  country  that  statute  has  been  abolished 
or  never  was  in  force  under  the  decisions.  Charitable  uses  are, 
in  these  States,  governed  by  the  same  rules  as  are  applied  to 
other  devises  and  gifts,  except  in  so  far  as  the  statute  of  the 
State  may  have  introduced  a  change. 

In  another  group  of  States  that  statute  is  also  held  not  to 
be  in  force,  the  distinction  between  charitable  uses  and  ordinary 
trusts,  formerly  ascribed,  in  many  of  the  States,  to  the  operation 
of  this  statute,  is  held  to  emanate  from  principles  of  public 
policy  recognized  at  common  law,  and  announced  by  the  courts 
before  the  enactment  of  the  statute,  which,  in  this  respect,  is  but 
declaratory  of  the  pre-existing  common  law.  Hence  the  same 
rules  are  applied,  in  these  States,  as  if  the  statute  were  in  force. 

In  still  another  group  of  States  that  statute  is  held  to  be  in 
force  as  part  of  the  common  law  come  over  to  us  from  England.' 

§  424.  Charitable  Uses  upheld  where  other  Trusts  fail  for  In- 
definiteness.  —  A  well-defined  distinction  between  charitable 
and  other  testamentary  gifts  consists  in  the  liberality  with 
which  charitable  intentions  are  carried  out,  under  descriptions 
of  the  donees  and  of  the  objects  of  the  testator's  bounty  which 
must  be  held  void  for  uncertainty  in  any  but  charitable  gifts. 
It  is  one  of  the  essential  qualities  of  a  charity  that  the  benefi- 

1  Lily  V.  Hey,  1  Hare  580. 

2  Babb  V.  Reed,  5  Rawle  151. 

'  See  Woemer  on  Administration,  §  431. 


376  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  424 

ciaries  be  "an  indefinite  number  of  persons,"  and  it  has  been 
said  that  "the  thing  given  becomes  a  charity  where  the  un- 
certainty of  the  recipients  begins."  ^  However  uncertain, 
therefore,  or  indefinite  or  vague,  the  beneficial  donees  of  a 
charity  be,  if  the  court  is  satisfied  that  the  testator's  object 
is  a  charitable  use  in  the  legal  sense,  and  is  enabled  by  the 
terms  of  the  will  to  render  the  beneficiaries  certain  by  means 
of  trustees,  appointed  or  to  be  appointed,  such  gift  will  not  fail 
on  the  ground  of  uncertainty  of  the  objects.  But  where  the 
gift,  although  to  a  charitable  use,  is  so  indefinite  as  to  be  in- 
capable of  being  executed  by  a  judicial  decree,  it  is  invalid. 

Gifts  in  charity  to  unincorporated  societies,  incompetent  to 
take  for  want  of  corporate  powers  at  the  time  of  the  testator's 
death,  have  been  sustained  upon  their  subsequent  incorporation, 
or  by  the  appointment  of  trustees  by  the  court,  or  by  recogniz- 
ing the  donees  or  heirs  as  trustees. 

The  doctrine  that  equity  will  not  allow  a  certain  and  valid 
trust  to  fail  for  want  of  a  trustee  has  a  wide  application  when 
the  will  has  an  intent  recognized  as  being  charitable  under  the 
legal  definition.  Thus  the  court  has  appointed  a  new  trustee, 
the  trustee  named  in  the  will  refusing  to  accept,  even  when  the 
will  gave  the  trustee  discretionary  powers.^ 

Even  though  the  statement  in  the  will  of  the  purpose  of  the 
testator  be  so  vague  and  indefinite  that  from  such  statement 
alone  a  valid  charity  could  not  be  construed,  courts  seize  on 
the  discretion  given  the  trustee  in  the  will  as  eliminating  the 
vagueness  in  the  statement  of  the  testator's  purpose.  "Id 
cerium  eet  quod  certum  reddi  j^otest." 

It  is  obvious  that  it  is  more  difficult  to  uphold  a  trust  in  which 
neither  the  ultimate  beneficiaries  nor  the  instruments  or  agents 
to  carry  it  out  are  clearly  pointed  out,  than  one  in  which  either 
of  these  elements  of  the  trust  is  specific  and  certain.  But  there 
is  some  diversity  among  the  several  States,  and  not  always  per- 
fect unanimity  among  the  courts  of  the  same  State,  as  to  the 
extent  to  which  courts  will  go  in  gi\'ing  effect  to  testamentary 
charities,  either  by  creating  trustees  where  such  are  wanting,  or 
ascertaining  the  ultimate  recipients. 

1  McLean,  J.,  in  Fonitain  v.  Ravenel,  17  How.  (U.  S.)  369,  384. 

2  Sawtelle  v.  Witham,  94  Wis.  412. 


§§  425,  42G]     DISPOSITIONS  CONTROLLED  BY  PUBLIC  POLICY.     377 

The  variance  bet\\'een  States  is  so  great  as  to  how  far  they 
will  go  in  upholding  as  a  charity  a  trust  which  would  clearly 
be  too  vague  if  made  for  any  other  purpose,  that  it  seems  im- 
practicable to  attempt  any  classification  here.  Authorities  in 
one  State  may  be  of  little  value  in  another.^ 

§  426.  Charitable  Trusts  continue  indefinitely.  —  The  dura- 
tion of  a  public  or  charitable  trust  is  not  affected  by  the  rule 
which  limits  the  inalienability  of  property  under  a  private  trust 
to  a  certain  time,  and  avoids  any  attempt  to  exceed  this  period. 
Such  a  trust  may  be  perpetual  in  its  duration,  and  a  change 
from  one  charity  to  another,  upon  the  happening  of  a  certain 
event,  has  been  held  to  confer  a  valid  gift  upon  the  second  char- 
ity after  two  hundred  years.^ 

In  some  of  the  States  the  rule  against  tying  up  property  for 
a  certain  purpose  is  not  relaxed  in  favor  of  charitable  uses, 
but  applies  to  them  as  fully  as  to  ordinary  testamentary 
dispositions.^ 

The  rule  in  question  prohibiting  perpetual  restraint  of  alien- 
ation is  sometimes,  in  cases  discussing  this  exception  of  chari- 
ties from  the  rule,  spoken  of  as  a  rule  against  perpetuities.  But 
the  subject  has  nothing  to  do  with  the  doctrine  discussed  under 
that  title  in  §  418,  No  exemption  from  that  rule  is  given  to 
charities.  If  the  vesting  of  the  limitation  to  a  charity  may 
possibly  be  delayed  beyond  lives  in  being  and  twenty-one  years 
thereafter  it  is  invalid,  as  in  case  of  any  other  testamentary 
disposition. 

§  428.  The  Doctrine  of  Cy  Pres.  —  We  have  seen  (ajite,  §  410) 
that  when  the  will  directs  a  purpose  to  be  accomplished,  and 
points  out  the  method,  if  the  latter  prove  inadequate,  it  will  be 
set  aside,  in  interest  of  the  overruling  purpose.  The  principle 
applies  to  charities  as  fully  as  to  any  other  trust.  Thus  when 
it  becomes  impracticable  to  lease  realty  in  the  manner  directed 
by  the  will,  the  sale  of  the  land  has  been  authorized  to  produce 
the  fund  to  support  the  charity.^ 

Cy  pres  is  a  broader  doctrine,  as  applied  to  charities.    ^Vhen 

*  See  numerous  authorities  in  Woemer  on  Administration,  §  429. 

2  Christ  Hospital  v.  Grainger,  16  Sim.  83,  101;  a.  c.  1  MacN.  &  G. 
460,  463. 

3  For  list  of  States,  see  Woemer  on  Administration,  §  429. 

*  Lackland  v.  Walker,  151  Mo.  210. 


378  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  427 

the  evil  to  be  relieved  by  the  charity  ceases  to  exist,  what  shall 
be  done?  It  must  be  remembered  that  the  charity  is  perpetual. 
What  shall  be  done  with  a  fund  for  the  relief  of  fugitive  slaves 
after  slavery  has  been  abolished?  Under  the  cy  pres  doctrine 
the  donor's  intention  will  be  carried  out  as  nearly  as  possible  by 
substituting  for  the  charity  which  has  terminated  another, 
analogous  to  it,  and  in  the  spirit  inspiring  the  donor's  original 
gift. 

Passing  the  history  of  cij  pres  in  England,  it  may  be  said  that 
in  America  the  doctrine  of  cy  pres  can  exist  only  as  a  judicial 
rule  of  construction,  —  to  assist  in  carrying  out  the  testator's 
charitable  intention.  Hence,  if  it  be  clear  that  the  testator 
me<int  to  confine  the  execution  of  his  purpose  to  the  exact 
method  pointed  out  in  the  will,  or  if  the  charitable  purpose  is 
limited  to  a  particular  object  or  institution,  then  the  substitu- 
tion of  another  method  or  object  would  be  subversive  of  his  in- 
tention, and  not  a  cy  pres  execution  of  his  purpose.  To  this 
extent,  and  in  this  sense,  the  doctrine  is  recognized  in  a  number 
of  States. 

In  probably  as  many  States,  however,  it  is  repudiated,  even 
to  the  extent  named,  and  courts  apply  the  same  rules  in  rejecting 
a  will  which  cannot  be  carried  out  as  are  applied  in  gifts  not 
charitable.^ 

§427.  Bequests  for  Masses  for  the  Dead. — As  stated  ante, 
§  414,  bequests  for  masses  for  the  dead  are  not  subject  to  attack 
in  this  country  on  the  ground  that  they  are  for  superstitious 
uses. 

Is  such  a  bequest  a  technical  charity?  If  it  is  \dewed  as 
solely  for  the  benefit  of  the  dead,  it  is  difficult  to  bring  it  under 
the  preamble  of  the  43rd  Elizabeth,  or  under  Judge  Gray's 
definition,  quoted  §  420,  ante.  Viewing  the  saj-ing  of  masses, 
however,  as  an  act  of  public  worship,  the  bequest  would  seem 
clearly  a  technical  charity,  and  the  testator's  belief  that  the 
souls  of  the  dead  are  to  be  benefited  seems  no  reason  for  in- 
validating it.  The  rulings  as  to  the  validity  of  such  a  bequest 
as  a  charity  are  divided.^ 

1  See  Woemer  on  Administration,  §  432. 

2  It  is  a  charity:  Hoeffer  v.  Clogan,  171  111.  462;  Schouler,  Petitioner, 
134  Mass.  423.    It  is  not  a  charity:  Festorazzi  v.  St.  Joseph's  Church,  104 


§  427]         DISPOSITIONS   CONTROLLED    BY    PUBLIC    POLICY.         379 

Another  view  denies  any  trust  in  the  bequest,  but  ui)holds 
it  as  an  absolute  gift  to  the  donee  (church,  priest,  etc.)  -^dthout 
legal  qualification,  the  donee  being  merely  morally  bound.^ 

Ala.  327,  also  authorities  in  New  York  and  Wisconsin,  but  in  the  latter 
States  the  decisions  rest  on  a  narrow  construction  as  to  all  charities. 
*  See  Sherman  v.  Baker,  20  R.  I.  446. 


380  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  428 


PART  II. 
OF  CARRYING  WILLS  INTO  EFFECT. 

CHAPTER  XLVIII. 

LEGAL  INCIDENTS  AFFECTING  DEVISES  AND   LEGACIES. 

§  428.  Lapse  of  Testamentary  Gifts  by  the  Death  of  the  Donee 
before  that  of  the  Testator.  —  As  a  general  rule  the  de\dse  or 
bequest  to  one  who  dies  before  the  testator  becomes  void,  even 
if  the  testator  knew  the  legatee  to  be  dead  when  making  the 
will.  The  reason  of  the  rule  applies  to  all  cases  in  which  the 
capacity  of  the  donee  to  take  the  devise  or  legacy  has  ceased 
to  exist  before  the  will  takes  effect.  Hence  the  legacy  to  a  cor- 
poration lapses  if  its  charter  has  expired  before  the  testator's 
death;  so  also,  a  gift  to  one  of  consumable  articles  for  life,  or  so 
long  as  she  shall  remain  unmarried,  lapses  by  her  marriage 
before  the  testator  dies.  The  insertion  after  the  name  of  the 
legatee  of  the  words  "his  heirs,"  "executors  or  administrators," 
"assigns,"  or  the  like,  will  not  prevent  the  application  of  the  rule, 
in  so  far  as  they  may  be  regarded  as  the  expression  of  the  tes- 
tator's intention  to  pass  to  the  legatee  the  absolute  property 
in  the  estate;  but  if  they  are  so  used  by  the  testator  as  to  indi- 
cate his  intention  that  the  persons  designated  should  take  by 
substitution  in  case  of  the  first-named  legatee's  intermediate 
death,  —  not  by  succession,  but  by  appointment  of  the  testator, 
—  the  gift  will  not  lapse,  but  go  to  the  person  so  indicated. 

A  devise  or  legacy  to  a  class,  though  as  tenants  in  common 
and  not  as  joint  tenants,  does  not  lapse  by  reason  of  the  death 
of  one  or  more  of  the  individuals  constituting  the  class  before 
the  testator.  The  distinction  between  a  gift  to  a  class  as  such, 
and  to  several  individuals  who  may  constitute  a  class,  is  that 
in  the  former  case  the  testator  intends  to  benefit  those  who  con- 


§  429]      INCIDENTS  AFFECTING  DEVISES  AND   LEGACIES.  381 

stitute  the  class,  excluding  all  others;  while  in  the  latter  his  pur- 
pose is  to  benefit  the  several  individuals  named,  whether  they 
constitute  a  class  or  not;  the  class  designation  serving  as  de- 
scriptio  personce.  Hence  if  it  appear  that  the  testator  intended 
to  provide  for  a  number  of  persons  as  a  class,  although  the  es- 
tate is  de\'ised  or  bequeathed  to  the  individuals  by  name,  the 
share  of  any  pi  them  d^ing  before  the  testator  will  not  lapse, 
but  go  to  the  survivors  of  the  class;  but  where  the  gift  is  to  sev- 
eral persons  by  name,  a  presumption  arises,  in  the  absence  of 
any  indications  in  the  language  of  the  will  to  the  contrary, 
that  it  is  to  them  severally  and  nominatim,  and  not  collectively, 
although  the  persons  named  may  constitute  a  class. 

Hence  in  such  case  the  share  of  any  beneficiary  who  dies  before 
the  testator  lapses. 

The  distribution  of  the  gift  to  a  class  has  nothing  to  do  with 
any  theory  of  joint-tenancy.  The  rule  applies  when  the  gift 
to  the  class  is  construed  as  given  to  tenants  in  common. 

§  429.  Statutory  Exceptions  in  Favor  of  Representatives  of  De- 
ceased Legatees.  —  The  several  States  have  provided  by  statute 
that  the  rule  mentioned  in  the  preceding  section  shall  not  apply 
in  cases  where  the  de\4se  or  bequest  is  to  children,  grandchil- 
dren, or  other  descendants  of  the  testator  who  die  before  him, 
lea\'ing  issue  living  at  the  time  of  his  death.  This  statutory 
exception  is  confined  to  those  claiming  under  donees  who  are 
descendants  of  the  testator  in  one  class  of  States;  and  extended 
to  other  relatives,  besides  children,  in  another.^ 

The  effect  of  these  statutes  is  to  vest  in  the  lineal  descendants 
of  the  deceased  legatee  or  de\asee  the  interest  which  the  latter 
would  have  been  entitled  to  if  in  esse  when  the  will  took  effect. 
But,  as  in  all  cases  of  testamentary  disposition  the  testator's 
intention  controls  mere  rules  of  construction,  so  these  statutes 
will  not  be  allowed  to  divert  the  gift  contrary  to  the  ascertained 
intention  of  the  testator. 

Where  the  legacy  is  directed  by  statute  to  go  to  the  children 
or  other  descendants  of  a  deceased  legatee,  they  take  directly, 
to  the  exclusion  of  his  executors  or  administrators,  in  the  same 
proportions  as  if  they  took  as  his  heirs  at  law  or  distributees,  the 
widow  taking  no  interest  therein.  But  whether  they  take  ab- 
*  See  Woemcr  on  Administration,  §  435. 


382  THE   LAW   OF  DECEDENTS'   ESTATES.         [§§  430,  431 

soliitely,  or  subject  to  the  equities  existing  against  the  primary 
legatee,  the  authorities  are  not  agreed.^ 

§  430.  The  Doctrine  of  Lapse  as  affected  by  the  Contingent  or 
Vested  Character  of  the  Devise  or  Legacy.  —  As  in  the  case  of  a 
simple  devise  or  legacy  the  death  of  the  donee  before  the  will 
can  take  effect  will  cause  the  gift  to  lapse,  so  in  the  case  of  a 
contingent  devise  or  legacy  the  same  result  will  follow  the  deatJi 
of  the  devisee  or  legatee  before  the  happening  of  the  event  upon 
which  the  gift  becomes  absolute,  although  his  death  occur  after 
that  of  the  testator.  Whether  a  legacy  is  vested  or  contingent 
depends  upon  the  language  of  the  will  creating  it;  and  the  fol- 
lowing rules,  formerly  applied  in  the  ecclesiastical  courts,  are 
recognized  in  America  in  aid  of  its  construction:  First,  that  a 
bequest  payable  at  a  given  time  certain  to  arrive  creates  an  in- 
terest vesting  on  the  testator's  death  (as  debitum  in  prcesenti 
solvendum  in  futuro),  transmissible  to  the  legatee's  representa- 
tives; second,  legacies  given  at  a  certain  age,  or  if,  when,  in  case, 
or  provided  the  legatee  attain  such  age,  or  any  future  definite 
period,  annex  the  time  to  the  substance  of  the  gift,  so  that  the 
legacy  depends  on  the  legatee's  being  alive  at  the  time  so  fixed; 
in  other  words,  a  legacy  is  to  be  taken  as  contingent  or  vested, 
just  as  the  contingency,  if  any,  is  annexed  to  the  gift,  or  to  the 
payment  of  it;  and  so  in  respect  of  the  devise  of  remainders  in 
real  estate. 

The  rules  illustrate  the  leaning  of  courts  tow^ard  a  construc- 
tion of  interests  as  vested  rather  than  contingent.  It  must  be 
remembered  that  these  rules  are  only  guides  for  construction, 
and  must  give  way  when  the  context  of  the  will  shows  that  the 
testator  had  a  different  intention. 

§  431.  Devolution  of  Void  and  Lapsed  Devises  and  Legacies.  — 
A  distinction  was  observed  in  respect  of  devises  void  from  the 
beginning,  because  there  never  was  a  devisee  competent  to 
take,  and  such  as  were  good  when  made  but  became  inoperative 
for  some  after-arising  cause,  and  therefore  lapsed.  This  dis- 
tinction led  to  the  recognition  of  a  difference  in  the  rights  of 
heirs  and  residuary  devisees  respectively  to  void  and  lapsed 

'  Denise  v.  Denise,  37  N.  J.  Eq.  163,  168,  is  the  leading  case  charging 
the  substituted  or  "statute-made  legatee"  with  the  primary  legatee's 
death.     There  are  many  contrary  cases.    See  Woemer,  §  435. 


§  432]       INCIDENTS  AFFECTING  DEVISES  AND   LEGACIES.  383 

devises.  The  testator  was  presumed  to  have  given  to  the  resid- 
uary devisee  all  that  he  intended  him  to  have,  and  that  therefore 
he  intended  him  to  have  no  more;  hence  the  heir  at  law  was  held 
entitled  to  lapsed  devises;  but  since  a  void  devise  does  not 
constitute  a  testamentary  act,  the  property  mentioned  therein 
cannot  be  said  to  have  been  given  to  any  one,  and  must  therefore 
be  included  in  what  is  given  to  the  residuary  devisee. 

Besides,  since  under  common  law  the  will  spoke  as  to  realty 
as  of  its  date,  and  not  as  of  the  date  of  the  testator's  death,  it 
could  not  dispose  of  property  acquired  after  its  execution,  and 
hence  the  residuary  clause  could  not  dispose  of  such  property 
as  fell  into  the  estate  by  lapse  after  the  will  was  executed. 

As  to  void  and  lapsed  legacies,  however,  the  controlling  con- 
siderations are  different. 

If  real  estate  is  not  devised,  it  descends  to  the  heir;  hence  the 
heir  is  held  to  take,  to  the  exclusion  of  residuary  devisees,  in 
the  absence  of  statutory  modification  of  the  rule,  all  lapsed 
devises  not  otherwise  disposed  of  by  the  will.  But  as  to  the 
personal  estate,  the  executor  anciently  took  it  for  the  purpose 
of  disposing  of  it  according  to  the  testator's  direction,  and  was 
allowed  to  retain  for  his  own  benefit  any  surplus  remaining  after 
paying  funeral  expenses,  testamentary  charges,  debts,  and  leg- 
acies; it  was  natural,  therefore,  that  the  residuary  legatee  should 
have  a  better  right  thereto  than  the  executor.  Hence  the  rule 
is,  that  as  to  the  personalty  the  will  speaks  from  the  time  of  the 
testator's  death,  and  the  residuary  legatee  takes  not  only  what 
is  undisposed  of  by  the  terms  of  the  will,  but  that  which  becomes 
undisposed  of  at  the  death  by  disappointment  of  the  intention 
of  the  v\ill.  This,  whatever  be  its  origin,  is  the  rule  still  in 
force  generally  in  the  United  States  as  to  personalty.  It  is 
obvious,  however,  that,  if  the  residuary  legacy  itself  lapses,  the 
testator,  as  to  that,  died  intestate;  hence  where  the  will  gives 
to  several  persons  specific  shares  of  the  residue,  the  share  of 
such  of  them  as  may  die  before  the  testator  will  go  to  the  next 
of  kin. 

§  432.  The  Devolution  of  Void  and  Lapsed  Devises  and  Legacies 
as  afEected  by  Statutes.  —  An  English  statute  directing  that,  in 
the  absence  of  a  contrary  intention  apparent  from  the  will,  all 
void  and  lapsed  devises  shall  be  included  in  the  residuary  devise, 


384         THE  L-\W  OF  DECEDENTS'  ESTATES.        [§  433 

if  any,  has  substantially  put  real  estate  and  personal  property 
on  the  same  footing  in  respect  of  void  and  lapsed  devises  and 
legacies.    Statutes  to  the  same  effect  exist  in  several  States.^ 

Apart  from  these  statutes  directly  abolishing  this  peculiar 
rule  as  to  lapsed  devises,  the  same  result  is  held  to  flow  indirectly 
from  the  statutes  enacted  in  many  States  which  make  the  will 
speak  as  of  the  testator's  death  with  reference  to  his  realtv',  as 
well  as  with  reference  to  his  personalt\',  whereas  at  common 
law  the  will  did  not  dispose  of  realty  acquired  after  the  date  of 
the  will.  It  is  .accordingly  held  in  numerous  States,  that  the 
effect  of  directing  the  will  to  speak  and  take  effect  as  to  realty 
as  well  as  personalty  as  if  executed  immediately  before  the  death 
of  the  testator  is,  in  remo\'ing  the  distinction  between  real  and 
personal  estate,  to  sink  all  void  and  lapsed  de\'ises  and  legacies 
into  the  residuum,  unless  the  contrary  intention  is  indicated 
in  the  will, 

§  433.  Remainders,  and  Executory  Devises  and  Bequests.  —  If 
a  testator  give  to  one  a  particular  prior  estate,  and  to  another 
what  remains  upon  the  termination  of  the  prior  estate,  the  re- 
mainder is  vested  if  the  words  creating  it  point  merely  to  the  de- 
ferred possession  or  enjoyment,  and  will  be  so  construed  if  they 
dispose  of  the  ulterior  estate  expressly  in  an  event  certain  upon 
which  the  prior  estate  is  to  determine;  but  the  remainder  is 
contingent  if  limited  to  an  uncertain  person,  or  dependent  upon 
an  uncertain  event.  In  the  former  case,  both  the  prior  and  ul- 
terior estate  vest  at  the  testator's  death,  —  that  of  the  one  in 
possession,  and  that  of  the  other  in  remainder;  in  the  latter 
case,  the  ulterior  estate  does  not  vest  in  the  remainderman 
before  the  contingency  upon  which  it  depends  has  occurred. 
On  feudal  principles,  as  embodied  in  the  common  law,  there 
can  be  no  remainder  without  seisin  in  either  the  remainderman 
or  the  tenant  of  the  particular  estate,  from  which  "  imperative 
feudal  dogma  of  the  common  law,"  as  Washburn  terms  it, 
arises  the  doctrine,  that  the  devise  of  a  future  contingent  interest 
not  preceded  by  a  freehold  estate  devised  in  the  same  will,  or 
any  future  interest  directed  to  take  effect  at  a  time  not  coinci- 
dent with  the  limitation  of  the  prior  estate  of  freehold,  can  only 
take  effect  as  an  executory  devise.  So  of  personal  property, 
1  See  Woemer,  §  438. 


§  433]      INCIDENTS  AFFECTING  DEVISES  AND   LEGACIES.  385 

in  which  a  remainder  may  hkewise  be  limited  after  a  prior  estate. 
Hence  an  executory  devise  (or  bequest)  is  said  to  be  such  a  lim- 
itation of  a  future  estate  or  interest  in  lands  or  chattels  as  the 
law  admits  in  the  case  of  a  will,  though  contrary  to  the  rules  of 
law  in  conveyances  at  common  law. 

A  discussion  of  the  estates  arising  under  the  Statute  of  Wills 
and  the  Statute  of  Uses  cannot  be  attempted  in  this  book. 
The  subject  pertains  to  the  law  of  real  estate.  Only  a  few  prin- 
ciples of  frequent  application  in  the  construction  of  wills  can  be 
mentioned. 

One  of  the  doctrines  of  the  common  law  which  are  rejected  in 
executory  devises  is  the  rule  that  a  fee  cannot  be  limited  after 
a  fee  simple.  But  this  can  be  done  by  way  of  executory  devise. 
A  devise  to  A  in  fee,  but  if  he  should  die  leaving  no  issue  at  his 
death,  then  to  B  in  fee,  is  bad  at  common  law,  but  good  as  an 
executory  devise. 

There  is  one  marked  exception  to  this  rule  permitting  the 
limitation  of  a  fee  simple  on  a  fee  simple  by  way  of  executory 
devise.  A  valid  executory  devise  cannot  be  limited  after  a  fee 
upon  the  contingency  of  the  non-execution  of  an  absolute 
disposing  power  vested  in  the  first  taker.  Such  a  limitation 
over  is  void  in  its  creation.  This  exception  has  been  ques- 
tioned, and  it  would  seem  with  good  reason,  but  is  established 
under  the  decisions. 

It  should  be  observed,  that  the  rule  does  not  apply  to  a  power 
of  disposition  given  to  the  donee  of  an  estate  expressed  to  be 
for  life  only;  the  addition  of  the  power  does  not  enlarge  the  life 
estate  into  a  fee,  and  the  de\4se  over  will  be  good.  Nor  does  it 
apply  where  the  devise  over  is  not  dependent  upon  the  event  of 
death  simply,  but  upon  death  in.connection  with  some  collateral 
event,  or  death  without  issue,  or  without  children,  the  tendency 
of  the  courts  is  to  lay  hold  of  slight  circumstances  to  take  it 
out  of  the  rule  above  stated,  and  give  effect  to  the  natural 
import  of  the  words  under  the  circumstances.  The  rule  applies 
only  when  the  first  gift  is  absolute  and  unrestricted. 

When  the  estate  is  given  in  fee,  with  a  provision  that  on  the 
happening  of  a  contingent  event  the  estate  shall  go  to  another, 
obviously,  when  the  possibility  of  the  happening  of  the  con- 
tingency is  at  an  end,  the  first  taker  has  an  absolute  fee,  re- 


3S6  THE   LAW   OF  DECEDENTS'  ESTATES.  [§  434 

lieved  of  all  conditions.  A  gift  to  A  in  fee,  provided  that  if  a 
child  is  bom  to  B  the  estate  shall  go  to  that  child  in  fee,  leaves 
A  an  absolute  estate  if,  and  as  soon  as,  B  dies  childless.  And 
conversely,  if  the  prior  estate  lapse  or  fail,  as  where,  for  in- 
stance, a  widow  refused  to  take  the  life  estate  willed  to  her,  the 
gift  o\'er  will  take  effect  as  an  executory  devise.  The  defeat  of 
a  particular  estate,  void  in  its  creation  by  reason  of  being  limited 
to  a  person  incapable  by  law  of  taking,  or  who  refuses  to  take, 
operates  to  accelerate  the  remainder  immediately  expectant 
thereon,  which  then  vest  upon  the  death  of  the  testator;  but 
the  acceleration  does  not  afifect  possession  or  enjoyment,  if  by 
the  terms  of  the  devise  over  it  is  to  take  effect  at  a  particular 
time. 

Cases  are  very  numerous  in  which  the  testator  gives  the  estate 
to  his  widow  for  life  if  she  continue  a  widow,  and  over  if  she 
shall  marry.  The  rule  is,  that  in  such  cases  the  widow  takes  an 
estate  durante  viduitate;  the  gifts  over  are  vested  remainders, 
taking  effect  on  her  marriage,  or,  if  she  die  unmarried,  at  her 
death. 

§  434.  Devises  and  Legacies  on  Condition.  —  It  requires  no 
particular  form  of  words  to  annex  a  condition  to  a  devise  or 
legacy;  it  is  sufficient  if  the  testator's  intention  to  that  effect 
appear.  Conditions  are  either  precedent  or  subsequent;  if  the 
former,  the  donee  takes  no  vested  interest  before  the  condition 
is  performed ;  if  the  latter,  the  interest  vesting  before  is  divested 
by  non-performance  or  breach  of  the  condition.  ^Vhether  a 
condition  be  the  one  or  the  other  is  sometimes  difficult  to  as- 
certain, for  there  are  no  technical  appropriate  words  to  mark 
the  distinction;  it  is  alwaj'^s  a  question  of  intention,  to  be  found 
from  the  language  of  the  \\dll.  If  the  act  on  which  the  estate  de- 
pends does  not  necessarily  precede  the  vesting  of  the  estate,  but 
may  accompany  or  follow  it,  the  condition  is  subsequent.  Two 
general  rules  are  stated  by  Chief  Justice  IMarshall,  which  may 
assist  in  the  construction  of  wills  on  this  point :  "  It  is  a  general 
rule  that  a  devise  in  words  of  the  present  time,  as,  '  I  give  to  A 
my  lands  in  B'  imports,  if  no  contrary  intent  appears,  an  im- 
mediate interest,  which  vests  in  the  devisee  on  the  death  of  the 
testator.  It  is  also  a  general  rule,  that  if  an  estate  be  given  on 
a  condition,  for  the  performance  of  which  no  time  is  limited,  the 


§  435]       INCIDENTS   AFFECTING   DEVISES  AND   LEGACIES.  3S7 

devisee  has  his  Hfe  for  performance."  ^  Thus,  if  the  condition 
imposed  is  impossible  of  execution  without  enjoyment  of  the 
estate,  or  is  of  a  contingent  nature  so  that  it  is  uncertain  whether 
it  will  ever  be  required,  it  cannot  be  a  condition  precedent, 
although  words  so  indicating  be  annexed  to  the  gift. 

On  the  other  hand,  if  a  devise  of  one  thing  be  in  lieu  or  in 
consideration  of  another,  that  which  is  to  be  done  by  the  devisee 
constitutes  a  condition  precedent.  So  if,  by  the  terms  of  the 
will,  a  thing  is  required  to  be  done  by  the  devisee  or  legatee 
before  he  gets  the  estate;  if,  for  instance,  the  gift  is  of  anything 
to  be  selected  by  the  donee,  the  selection  is  a  condition  precedent. 

If  the  condition  subsequent  is  illegal,  it  is  a  nullity.  If  the 
performance  of  a  valid  condition  subsequent  is  made  impossible 
by  act  of  God,  its  performance  is  excused.  So,  also,  it  may  be 
waived  by  the  party  to  be  benefited  by  its  performance.  In  all 
these  cases  the  condition  subsequent  is  at  an  end,  and  the  donee 
has  an  unconditioned  estate. 

On  the  other  hand' the  rule  is  that  the  impossibility  of  per- 
forming a  condition  precedent  destroys  the  devise  or  bequest 
itself  even  though  there  be  no  default  or  laches  on  the  part  of 
the  devisee  or  legatee.  But  if  the  party  who  imposes  the  con- 
dition himself  makes  its  performance  impossible  or  unnecessary, 
it  ceases  to  be  binding,  and  the  estate  conveyed  is  discharged 
therefrom.  Indeed,  it  is  held  that  if  the  donee  does  all  in  his 
power  to  fulfil  a  condition  which  requires  concurrence  of  an- 
other, and  that  other  capriciously  refuses,  the  condition  does 
not  bind.  Such  was  the  holding  when  the  condition  precedent 
was  the  reconciliation  of  the  devisee  with  her  brother  within 
one  year  from  the  testator's  death.^ 

§  435.  Repugnant  Conditions.  —  We  have  just  seen  that  when 
the  condition  subsequent  is  invalid  in  law,  the  estate  devised 
or  bequeathed  passes  absolutely,  without  condition.  This  situ- 
ation arises  when  the  testator  devises  property  in  fee  and  at- 
taches conditions  as  to  its  use  which  are  inconsistent  with  the 
title  conferred,  and  in  contravention  of  the  policy  of  the  law. 
Such  provisions  are  called  repugnant  conditions,  and  are  void. 
Thus,  a  devise  to  the  testator's  children  "  in  case  the  same  con- 

»  Finley  v.  King,  3  Peters  376. 

2  Page  V.  Frazcr,  14  Bush  205,  209. 


388  THE  LAW   OF  DECEDENTS'  ESTATES.         [§§  436,  437 

tinue  to  inhabit  the  town  of  Hurley,  otherwise  not,"  is  void,* 
So  a  condition  against  ahenation;  or  that  the  land  shall  not  be 
liable  to  execution  or  attachment,  or  to  the  law  of  descent,  or 
which  restricts  the  use  of  an  absolute  gift.  Whether  there  can 
be  any  restraint  whatever  by  condition  subsequent  upon  the 
alienation  of  a  fee  simple  is  not  entirely  settled. 

It  is  held,  on  the  one  hand,  that  a  condition  against  alienation 
for  a  specified  time,  or  to  a  particular  person,  may  be  valid; 
but  it  is  now  generally  held,  that  the  condition  is  equally  void, 
whether  the  restriction  be  indefinite  or  for  a  certain  time  only. 

It  is  held  generally  in  this  country,  that  the  rule  against  con- 
ditions in  restraint  of  alienation  of  estates  in  fee  simple  (includ- 
ing restraint  on  the  power  of  voluntary,  and  of  liability  to  in- 
voluntary alienation)  does  not  apply  to  life  estates.  But  several 
States,  following  English  precedents,  hold  restrictions  on  aliena- 
tion of  life  estates  repugnant  to  the  estate,  and  therefore  void. 

§  436.  Spendthrift  Trusts.  —  From  the  foregoing  sections  it 
results  that  the  testator  cannot  protect  the  devisee  to  whom  he 
has  given  property  in  fee  simple  from  the  results  of  his  improvi- 
dence by  a  condition  in  restraint  of  alienation.  But  the  testator 
can  practically  secure  his  object  through  a  limitation  over  by 
way  of  executory  devise,  as  distinguished  from  a  condition  sub- 
sequent, in  the  event  of  attempted  alienation. 

A  provision  in  a  will  that  the  bounty  bestowed  upon  one  per- 
son shall  go  to  another  in  an  event  which  would  subject  it  to 
the  claims  of  creditors,  is  valid.  The  way  usually  adopted  for 
effectuating  this  object  is  the  creating  of  a  so-called  "  spendthrift 
trust."  The  trust  is  active,  so  that  the  trustee  has  the  full  legal 
title.  The  spendthrift  is  usually  given  only  an  equitable  life 
estate.  Where  the  law  permits  restraint  of  alienation  in  life 
estates,  a  limitation  over  in  the  event  of  voluntary  or  invol- 
untary alienation  is  good. 

§  437.  Bequests  conditioned  on  Religious  Qualifications.  — 
Whether  a  condition  to  a  bequest  requiring  religious  qualifica- 
tion is  against  the  policy  of  the  law  in  the  United  States  is  not 
clearly  settled.  It  was  so  held  in  Virginia,  upon  the  ground  that 
a  restriction  imposed  as  a  condition  upon  the  enjoyment  of  a 
bequest,  requiring  that  the  legatee  shall  be  a  member  of  any 
1  Newkerk  v.  Newkerk,  2  Caines  345,  352. 


§§438-440]    INCIDENTS  AFFECTING  DEVISES  AND   LEGACIES.    389 

religious  sect  or  denomination,  is  directly  violative  of  the  policy 
of  the  law  guarding  the  rights  of  conscience.^  But  the  Supreme 
Court  of  South  Carolina  reversed  the  decision  of  the  Circuit 
Court  holding  the  above  doctrine,  in  a  case  involving,  aside  from 
the  question  of  public  policy,  great  hardship  to  the  legatee.^ 
So  in  Maryland,  a  condition  that  the  legatee  should  withdraw 
from  the  priesthood  or  membership  of  any  order  or  society 
connected  with  the  Roman  Catholic  Church  is  held  valid.^ 
The  Supreme  Court  of  the  United  States  held  that  a  condition 
excluding  ecclesiastics,  ministers,  and  missionaries  from  a  college 
founded  by  the  testator  is  not  void  in  Pennsylvania.* 

§  438.  Condition  for  Separate  Life  of  Married  Couple.  —  A  con- 
dition that  the  donee  shall  not  live  with,  nor  contribute  to  the 
support  of,  his  wife,  is  not  only  contrary  to  public  policy  and 
good  morals,  but  in  direct  violation  of  the  law,  and  is  therefore 
void;  and  although,  being  a  condition  predecent,  it  would  at 
the  common  law  destroy  the  gift,  yet  in  equity,  as  under  the 
civil  law,  the  condition  is  void,  and  the  gift  good  as  to  person- 
alty. But  where  the  intention  of  the  testator  is  to  protect  the 
wife  against  want  in  case  of  separation,  not  to  make  separation 
the  consideration  for  his  bounty,  the  condition  is  valid. 

§  439.  Condition  against  Disputing  the  Will.  —  It  seems  to  be 
held  in  England,  that  conditions  against  disputing  the  will  are 
to  be  regarded  in  terrorem  only  when  annexed  to  bequests  of 
personal  property,  if  there  be  no  legacy  over  to  another  upon 
breach  of  the  condition;  but  that  they  are  valid  as  to  real  estate, 
whether  there  be  a  gift  over  or  not.  In  America,  the  preponder- 
ance of  authority  seems  to  incline  in  favor  of  their  validity  in 
either  case.  The  rule  that  one  cannot  claim  the  benefit  of  a 
will  and  also  claim  against  it,  is  fully  applicable.^ 

§  449.  Conditions  in  Restraint  of  Marriage.  —  By  the  civil 
law,  all  conditions  in  wills  in  restraint  of  marriage  are  void, 
whether  they  are  precedent  or  subsequent,  with  or  without  a 

1  Maddox  v.  Maddox,  11  Grat.  804,  814. 

2  Magee  v.  O'Neil,  19  S.  C.  170,  185. 

3  Bamum  v.  Baltimore,  62  Md.  275,  290,  relying  on  Mitchell  v.  Mit- 
chell, 18  Md.  405,  411,  and  Ex  parte  Dickson,  1  Sim.  (N.  S.)  37,  in  both 
of  which  the  condition  was  against  the  devisee's  becoming  a  nun. 

*  Vidal  V.  Girard,  2  How.  (U.  S.)  127,  197. 

^  See  Woemer,  Administration,  §  442  and  authorities  there  cited. 


390  THE  L-\W  OF  DECEDENTS'   ESTATES.  [§  440 

gift  over,  and  however  qualified.  This  rule  seems  at  one  time 
to  have  been  adopted  by  the  ecclesiastical  courts  of  England, 
and  in  a  great  measure  by  the  courts  of  equity.  The  jurisdiction 
of  the  English  ecclesiastical  courts  was  confined  to  personal 
property;  real  estate  was  subject  to  the  rules  of  the  common- 
law  courts,  where  this  doctrine  of  the  civil  law  never  prevailed. 
Although  these  also  deny  validity  to  conditions  in  general 
restraint  of  marriage,  even  if  followed  by  a  devise  over,  yet  they 
give  effect  to  such  conditions  as  require  the  consent  of  guardians 
or  relatives  to  marriage,  either  at  a  particular  or  at  any  age; 
and  conditions  that  the  devisee  shall  not  marry  a  specified  per- 
son, or  before  a  stated  age,  or  in  a  particular  manner,  or  the  like, 
so  that  the  restraint  is  not  of  marriage  in  general,  are  held  la^^'ful. 

An  opinion  rendered  by  Brent,  J.,  at  nisi  prius,  and  affirmed 
by  the  Court  of  Appeals  of  ]\Iaryland,  gives  a  very  clear  and 
concise  statement  of  the  rule  deducible  as  being  in  harmony  with 
the  preponderance  of  authority:  "If  either  real  or  personal  es- 
tate be  devised  upon  a  condition  precedent  to  the  vesting  of  the 
estate,  coupled  with  a  de\dse  over  upon  breach  of  the  condition, 
the  devise  or  bequest  is  good,  and  the  restraint  effectual  to 
defeat  the  estate.  If  the  estate  be  real,  the  condition  precedent 
in  restraint  of  marriage  will  be  good,  whether  there  be  a  devise 
over  or  not,  and  whether  the  restraint  be  general  or  qualified. 
If  the  estate  be  personal,  the  condition  precedent,  in  general 
restraint  of  marriage,  will  be  void  if  there  be  no  limitation  over, 
but  if  there  be  a  limitation  over  it  wdll  be  good.  In  regard  to 
conditions  subsequent,  if  they  be  in  general  restraint  of  mar- 
riage, and  there  is  no  limitation  over,  they  are  void  as  to  both 
real  and  personal  estate.  If  in  general  restraint  of  marriage, 
and  there  is  a  limitation  over,  they  are  void  as  to  personal  estate. 
But  as  to  real  estate  the  cases  are  in  conflict.  The  later  and 
better  opinion,  however,  seems  to  be,  that  even  in  that  case 
the  limitation  over  should  prevail.  If  the  condition  subsequent 
be  in  limited  and  qualified  restraint  of  marriage,  it  w\\\  be  good, 
provided  it  be  accompanied  by  a  limitation  over.  If  there  is 
no  limitation  over,  it  will  be  construed  as  in  terrorem  only,  and 
not  an  imperative  condition.^ 

Restraint  on  remarriage  of  a  man  or  woman  is  held  to  be 
»  Gough  V.  Manning,  26  ]Md.  347,  351. 


§  441]      INCIDENTS  AFFECTING  DEVISES  AND   LEGACIES.  391 

valid,  it  is  believed,  in  all  States. ,  In  a  few  such  restraint  in  the 
form  of  a  technical  common-law  condition  is  not  good;  but  even 
in  these  States  it  is  held  good  if  put  in  the  form  of  a  limitation 
over.  On  this  distinction  under  a  bequest  to  a  widow  ij  she  do 
not  marry,  she  takes  the  legacy  whether  she  marries  or  not; 
but  if  the  bequest  is  until  she  marry,  she  will  forfeit  it  by  her 
remarriage. 

§  441.  Classification  of  Legacies.  —  Legacies  are  classified  as 
specific,  general,  demonstrative  and  residuary.  The  distinction 
between  specific  and  general  legacies  is,  that  the  former  single 
out  the  particular  or  specific  thing  which  the  testator  intends 
the  donee  to  have,  no  regard  being  had  to  its  value;  while  the 
latter  are  payable  out  of  the  general  assets,  the  chief  element  of 
the  gift  being  its  quantity  or  value. 

Specific  legacies  differ  in  their  effect  from  general  legacies 
in  two  important  particulars.  The  great  advantage  of  the 
former,  to  the  legatee,  consists  in  their  immunity  from  abating 
with  general  legacies,  which  will  be  more  fully  considered  here- 
after. On  the  other  hand  they  are  subject  to  the  disadvantage 
of  having  no  recourse  against  the  general  estate  in  case  the  thing 
given  be  lost,  adeemed,  or  from  any  cause  lessened  in  value, 
for  recompense  or  satisfaction. 

There  is  a  third  class  of  legacies,  known  by  the  name  given 
them  in  the  civil  law  as  devionstrative  legacies, differing  from  gen- 
eral and  partaking  of  the  nature  of  specific  legacies  in  that  they 
are  not  liable  to  abate  with  general  legacies  upon  a  deficiency 
of  assets,  and  on  the  other  hand  differing  from  specific  and 
partaking  of  the  quality  of  general  legacies,  in  so  far  as,  if  the 
fund  fail,  the  legatee  will  be  entitled  to  receive  the  legacy  out 
of  the  general  assets.  A  demonstrative  legacy  is  a  pecuniary 
legacy,  or  legacy  of  quantity,  the  particular  fund  or  personal 
property  being  pointed  out  from  which  it  is  to  be  taken  or  paid. 

The  intention  of  the  testator  is  of  course  decisive  in  deter- 
mining whether  a  legacy  belongs  to  one  or  another  of  these 
classes,  as  the  division  itself  into  classes  is  but  the  means  of 
carrying  such  intention  into  effect. 

If  a  testator  leaves  a  specific  thing  say  "my  horse  Poseidon, 
worth  S500.00,"  we  have  a  specific  legacy.  If  the  horse  is  not 
in  existence  at  the  testator's  death,  clearly  the  legatee  has  no 


392  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  441 

claim  for  its  value.  If  the  testator  bequeaths  merely  "a  horse 
worth  S500.00,"  without  referring  to  any  particular  horse, 
this  is  a  general  legacy,  since  it  is  satisfied  by  delivering  to 
the  legatee  any  horse  of  the  stated  value.  And  if  the  testator 
leaves  S500.00  to  X.,  directing  that  it  shall  be  paid  out  of  the 
funds  of  the  testator  deposited  in  a  specified  bank,  there  is  a 
demonstrative  legacy.  The  prime  object  of  the  testator  was 
to  give  X.  !iii500.00.  If  the  amount  is  in  the  designated  bank, 
it  should  be  paid  from  that  source,  as  if  it  were  a  specific  legacy. 
But  if  there  are  no  funds  there,  or  insufficient  funds,  the  be- 
quest, or  the  balance,  should  be  paid  out  of  the  general  estate 
as  a  general  legacy. 

Courts  proceed  upon  the  presumption  that  the  testator  in- 
tended a  real  benefit  to  the  legatee,  and  hence  incline  to  consider 
legacies  as  general,  rather  than  specific,  if  the  language  of  the 
will  admits  of  such  construction. 

Stocks,  securities,  or  shares  in  corporations  are  specifically 
bequeathed,  if  they  are  clearly  referred  to  as  distinguished  from 
such  stocks,  etc.,  generally;  the  word  "my"  is  sometimes  suffi- 
cient, if  qualifying  the  stock,  annuity,  etc.,  bequeathed,  to 
make  a  specific  bequest,  as  "one-half  of  all  my  stock,"  etc. 

All  devises  of  real  estate,  including  chattels  real,  are  said  to 
be  specific  in  their  effect.  But  this  doctrine  is  materially  affected 
by  the  abrogation  of  the  common-law  rule  from  which  it  em- 
anates, limiting  the  operation  of  the  devise  of  real  estate  to 
such  as  the  testator  was  seised  of  at  the  time  he  executed  the 
will.  In  States  where  the  will  passes  real  estate  acquired  after 
its  execution,  no  devise  of  lands  will  be  considered  as  specific, 
unless  it  be  specifically  designated;  at  least  not  so  far  as  after- 
acquired  lands  are  in  question.  The  same  effect  is  ascribed  to 
the  English  statute  of  1  Vict.  c.  26,  §  25 ;  and  the  American  view 
seems  to  be  that  the  enactment  of  these  statutes  places  real 
and  personal  property,  in  this  respect,  on  the  same  level. 

Residuary  legacies  are  bequests  by  which  the  testator  disposes 
of  what  is  left  after  the  satisfaction  of  debts  and  prior  legacies. 
A  general  residuary  clause  is  not  the  less  general  because  some 
of  the  particulars  of  which  it  may  consist  are  therein  enumer- 
ated, unless  it  is  deducible  from  the  context  that  the  testator 
meant  the  words  in  a  different  sense. 


§§442,443]    INCIDENTS  AFFECTING  DEVISES  ANT)   LEGACIES.   393 

§  442.  Cumulative,  Repeated,  and  Substituted  Legacies.  —  A 
legacy  bequeathed  twice  to  the  same  person  may  be  either 
cumulative,  if  the  testator  intended  the  legatee  to  have  the  two 
legacies  given  him  in  the  same  will,  or  in  a  will  and  a  codicil; 
or  the  second  may  be  only  a  repetition  of  the  bequest  of  the 
first,  in  which  case  the  legatee  will  take  but  one  legacy.  This  is 
a  question  of  intent,  to  be  ascertained  from  the  testator's 
will,  construed  with  reference  to  any  circumstances  which  the 
court  may  lawfully  consider.  When  uncertainty  still  remains, 
the  question  must  be  solved  by  rules  of  construction,  establish- 
ing a  presumption  of  intention  for  the  case.  Where  the  legacies 
are  of  equal  amount,  the  second  is  presumed  to  be  a  mere  repe- 
tition, if  found  in  the  same  instrument;  but  if  found  in  a  differ- 
ent one  (a  codicil  to  the  will  first  gi\'ing  the  legacy),  the  second 
is  presumed  to  be  cumulative.  When  the  legacies  to  the  same 
legatee  are  of  unequal  amount,  though  found  in  one  instrument, 
one  is  not  merged  in  the  other;  the  legatee  takes  both. 

§  443.  Ademption  and  Satisfaction  of  Legacies  by  Act  of  the 
Testator.  — A  legacy  is,  strictly  speaking,  adeemed  (from  adimere, 
to  take  away)  when  the  tiling  given  has,  by  some  act  of  the  tes- 
tator, ceased  to  exist  in  the  form  in  which  it  is  described  in  the 
will,  so  that  on  his  death  there  is  nothing  answering  the  descrip- 
tion of  the  legacy  to  be  given  to  the  legatee.  This,  of  course, 
can  only  happen  in  cases  of  specific  legacies,  since  general  or 
demonstrative  legacies  are  not  dependent  upon  the  existence 
of  specific  things,  and  cannot  therefore  be  adeemed,  or  taken 
away,  by  the  destruction  or  alteration  of  the  subject  of  the  gift. 
A  similar  result  follows  where  the  testator  performs  the  function 
of  an  executor,  by  giving  during  his  lifetime  what  he  intended 
the  legatee  to  have  by  his  will,  thereby  satisfying  the  legacy 
himself,  leaving  nothing  for  the  executor  to  do  in  respect  of  such 
legacy.  The  distinction  between  the  ademption  and  satisfaction 
of  legacies  seems  clear  enough,  but  it  is  not  generally  observed, 
the  term  "ademption"  being  broadly  used  to  include  "satis- 
faction." The  specific  bequest  of  a  debt  or  fund  owing  to  the 
testator  is  adeemed  by  the  payment  of  the  fund  or  debt  to  the 
testator  during  his  lifetune,  and  the  receipt  by  the  testator  of 
part  of  such  debt,  or  the  alienation  or  change  of  part  of  stock 
specifically  bequeathed,  will  be  an  ademption  yw  tanto. 


394  THE   LAW  OF  DECEDENTS'  ESTATES.  [§  444 

There  is  conflict  in  the  authorities  as  to  whether  the  ademp- 
tion of  the  debt  results  from  the  mere  fact  that  the  debt  has 
ceased  to  exist,  or  whether  it  is  evidence  of  a  revocation  by  the 
testator.  Where  the  testator,  having  forgiven  a  debt  in  his  will, 
becomes  subsequently  insane,  and  a  guardian  collects  that  debt 
in  the  testator's  lifetime,  this  issue  must  be  met.  Under  such 
circumstances  there  is  conflict  in  the  rulings.^ 

Where  the  testator's  interest  in  property  bequeathed  is  al- 
tered, or  a  fund  converted  into  property  of  a  different  descrip- 
tion, by  the  operation  of  law,  or  without  the  testator's  consent, 
there  will  be  no  ademption;  nor  is  the  identity  of  a  debt  lost, 
so  as  to  cause  it  to  be  adeemed  by  the  renewal  from  time  to 
time  of  notes  given  to  secure  it. 

§  44  i.  Legacies  in  Satisfaction  of  Debts.  —  If  a  testator,  hav- 
ing given  a  legacy  in  discharge  of  a  debt  or  wdth  a  view  to  ac- 
complish some  particular  purpose,  himself  pays  the  debt  or 
carries  out  the  purpose  in  his  lifetime,  the  legacy,  being  thus 
satisfied,  is  thereby  cancelled.  A  legacy  expressly  given  to  pay 
a  debt  is  satisfied  by  its  payment  by  the  testator  in  his  lifetime, 
although  larger  than  the  debt.  In  connection  with  this  prin- 
ciple, a  rule  was  established  in  the  English  equity  courts,  that, 
where  a  debtor  bequeaths  to  his  creditor  a  legacy  equal  to  or 
greater  than  the  amount  of  his  debt,  it  shall  be  presumed,  in 
the  absence  of  a  contrary  intent  inferable  from  the  wall,  that 
the  legacy  was  intended  to  be  in  satisfaction  of  the  debt.  The 
American  courts  recognize  the  rule,  but  regret  its  existence, 
and  lean  to  a  contrary  presumption  whenever  the  testator's 
language,  or  even  circumstances,  proved  aliunde,  enable  them 
to  disregard  the  ancient  rule.  For  instance,  the  rule  was  not 
applied  when  the  debt  was  for  an  unliquidated  amount;  nor 
where  the  debtor-legatee  was  one  of  several  to  whom  equal 
amounts  were  bequeathed. 

On  the  other  hand,  the  bequest  of  a  legacy  to  a  debtor  does 
not  per  se  release  or  extinguish  the  debt.  The  testator's  inten- 
tion to  add  to  the  legacy  the  release  or  discharge  of  the  legatee's 

^  Under  such  circumstances  the  debt  is  considered  adeemed  in:  In  re 
Freer,  22  L.  R.  Ch.  Div.  622,  and  Hoke  v.  Herman,  21  Pa.  St.  301.  The 
contrary  is  held  in  the  later  case  of  Wilmerton  v.  Wilmerton,  176  Fed. 
(C.  C.  A.)  896. 


§  445]       INCIDENTS  AFFECTING  DEVISES  AND   LEGACIES.  395 

debt  to  him  must  appear  by  clear  expression  or  necessary  impli- 
cation. 

Since  the  release  of  a  debt  by  a  testator  is  but  a  bequest,  such 
debt  is,  like  any  other  bequest,  liable  to  be  taken  as  assets  to 
pay  the  testator's  debts;  and  the  executor  may,  where  the  legatee 
is  indebted  to  the  testator,  retain  the  legacy,  either  in  partial 
or  full  satisfaction  of  the  debt,  by  way  of  set-off. 

§  445.  Ademption  of  Legacies  given  as  Portions.  —  According 
to  an  arbitrary  doctrine  prevailing  in  courts  of  equity,  a  legacy 
given  by  a  father,  or  person  in  loco  iMrentis,  to  a  child  or 
grandchild,  is  completely  adeemed  if  he  afterwards,  during  his 
lifetime,  advances  a  portion  for  that  child,  on  the  occasion  of 
its  marriage  or  otherwise;  and  the  ademption  is  complete 
whether  the  advancements  are  larger  than,  or  equal  to,  or  smal- 
ler than  the  testamentary  portions.  The  doctrine  seems  to 
have  originated  in  the  reluctance  of  equity  courts  to  sanction  a 
rule  which  might  allow  double  portions  to  children.  To  avoid 
'such  possibility,  they  created  the  presumptions  according  to 
which  every  legacy  from  a  father  to  his  child  is  yriiiia  facie 
intended  as  a  portion,  and  that  every  advancement  to  such 
child  by  the  testator  during  life  is  intended  as  a  satisfaction 
of  such  portion.  "  Whatever  may  be  thought  of  the  doctrine, 
it  is  thoroughly  established  in  English  and  American  juris- 
prudence." ^ 

The  original  severity  of  the  rule  raising  the  presumption  of 
intention  to  adeem  a  legacy  by  the  advancement  of  a  portion 
less  in  amount,  has  been  relaxed,  however,  so  that  now  such 
advancement  operates  as  an  ademption  yro  tanto  only. 

Modern  courts  seek  reasons  to  avoid  the  rule.  It  has  been 
held  that,  where  there  is  great  disparity  between  the  gift  inter 
vivos  and  the  legacy,  the  latter  being  greatly  in  excess  of  the 
former,  the  gift  is  not  regarded  as  either  a  portion  or  an  ad- 
vancement, so  as  to  operate  as  an  ademption  or  satisfaction 
pro  tanto,  if  not  so  expressed  by  the  testator,  or  clearly  indicated 
by  the  circumstances.  So  the  gift  of  small  sums,  from  time  to 
time,  is  not  regarded  as  a  satisfaction  or  ademption  of  a  legacy 
by  a  father,  or  one  in  loco  parentis,  to  a  child,  even  pro  tanto; 
nor  a  provision  not  ejusdem  generis  with  the  legacy,  unless  an 
*  Weston  V.  Johnson,  48  Ind.  15. 


396  THE   LAW  OF  DECEDENTS'   ESTATES.        [§§  446,  447 

intention  to  such  effect  be  clearly  apparent  or  expressed. 
Specific  legacies  are  said  not  to  be  affected  by  the  subsequent 
advancement  of  a  portion,  because  the  gift  of  specific  articles 
of  personal  property  by  a  father  to  his  child  is  not  presumed  to 
be  intended  as  a  portion. 

§  446.  Admissibility  of  Parol  Evidence  on  Questions  of  Ademp- 
tion. —  Upon  the  question  of  ademption  of  general  legacies,  — 
more  accurately  of  their  satisfaction  by  the  testator,  —  inten- 
tion is  of  the  very  essence;  and  as  this  question  is  determined 
by  the  effect  of  an  act  of  the  testator  intervening  between  the 
execution  of  the  will  and  his  death,  it  is  obvious  that  parol  evi- 
dence must  be  resorted  to,  —  not  to  ascertain  the  testator's 
intention  in  giving  the  legacy,  —  but  to  establish  or  disprove 
the  act  alleged  to  work  the  ademption  or  satisfaction  of  the 
legacy,  as  well  as  the  circumstances  which  may  explain  the 
motives  and  object  of  such  act,  to  show  whether  the  testator 
intended  it  to  affect  his  will  or  not.  As  to  the  declarations  of 
the  testator  concerning  an  act  claimed  to  be  an  ademption  of 
any  legacy,  it  seems  clear  that  his  statements  at  the  time  of  the 
act,  accompanying  it  and  giving  it  its  character,  are  admissible 
under  all  circumstances  as  part  of  the  transaction. 

Wliere  the  declaration  is  made  subsequent  to  the  act,  and 
tends  to  uphold  the  will,  it  is  generally  receivable  as  being  an 
admission  against  the  interest  of  the  testator  and  those  claiming 
under  him  against  the  contested  legacy. 

In  all  other  cases  another  rule  of  evidence  must  be  taken  into 
consideration. 

Parol  evidence  is  also  admissible  upon  the  principle  that  a 
presumption  of  intention,  raised  by  a  rule  of  construction,  may 
be  rebutted  or  confirmed  by  the  application  of  parol  evidence  of 
a  different  intention  on  the  part  of  the  testator,  and  any  doubt 
raised  by  parol  testimony  may  be  resolved  by  the  same  kind  of 
evidence. 

§  447.  Statutory  Provisions  afifecting  Ademption  of  Satisfaction 
of  Legacies.  —  By  the  English  Wills  Act  it  is  provided  that  "  No 
conveyance  or  other  act  made  or  done  subsequently  to  the  exe- 
cution of  a  will  of  or  relating  to  any  real  or  personal  estate 
therein  comprised,  except  an  act  by  w^hich  such  will  shall  be 
revoked,  .  .  .  shall  prevent  the  operation  with  respect  to  such 


§  447]      INCroENTS  AFFECTING  DEVISES  AND  LEGACIES.  397 

estate  or  interest  in  such  real  or  personal  estate  as  the  testator 
shall  have  power  to  dispose  of  by  will  at  the  time  of  his  death."  ^ 
Similar  statutes  exist  in  several  States.  A  New  York  act,  prac- 
tically doing  away  with  the  presumption  of  the  satisfaction  of 
legacies  by  advancements  is  the  basis  for  legislation  in  several 
other  States.  On  the  other  hand,  in  a  few  States  this  doctrine 
of  the  effect  on  legacies  of  subsequent  advancements  is  extended 
to  all  legatees,  whether  or  not  the  testator  stood  to  them  in 
loco  parentis.^ 

»  1  Vict.  c.  26  §  23. 

2  For  fuller  statement  of  statutory  changes,  see  Woemer  on  Adminis- 
tration, §  450. 


39S  THE  LAW  OF  DECEDENTS'   ESTATES.         [§§  448,  449 


CHAPTER  XLIX. 

OF  THE  SATISFACTION  OF  LEGACIES  BY  THE   EXECUTOR. 

§  448.  Preference  of  Creditors  over  Legatees.  —  It  has  already 
been  mentioned,  in  connection  with  the  subject  of  the  payment 
of  debts,  that  the  claims  of  all  creditors  must  first  be  discharged 
before  the  legacies  can  be  paid. 

^Vhen  all  the  debts  proved  against  an  estate  have  been  fully 
satisfied,  or  a  sufficient  amount  of  assets  reserved  for  the  pay- 
ment of  such  claims  as  may  be  in  litigation  or  payable  at  a  fu- 
ture time,  legatees  are  entitled  to  satisfaction  of  their  bequests, 
if  there  be  assets  for  that  purpose  in  the  hands  of  the  executor. 
If  the  assets  remaining  are  insufficient  to  carry  out  the  provisions 
of  the  will  in  every  particular,  they  must  be  applied  as  far  as 
they  go  in  the  manner  and  priority  directed  by  the  testator. 
If,  however,  it  cannot  be  ascertained  from  the  testator's  words 
upon  which  of  the  legatees  he  intended  the  loss  to  fall  in  case 
their  legacies  could  not  all  be  satisfied,  the  law  directs  a  certain 
order  in  which  they  abate;  and  it  will  be  necessary  to  consider 
briefly  the  rules  according  to  which  this  order  of  payment  is 
determined. 

§  449.  Order  in  which  Legacies  abate.  —  In  the  absence  of  a 
contrary  intention  inferable  from  the  words  of  the  will,  it  is 
to  be  presumed  that  the  testator  meant  to  discharge  his  liabil- 
ities and  obligations  before  giving  his  estate  in  bounty;  hence 
legacies  given  for  a  valuable  consideration,  or  for  the  relin- 
quishment of  a  right  or  interest,  are  entitled  to  priority  of  pay- 
ment over  voluntary  general  legacies.  Thus,  a  provision  for  a 
widow  in  lieu  of  her  dower  right  entitles  her  to  take  as  a  pur- 
chaser for  a  valuable  consideration,  not  subject  to  that  abate- 
ment to  which  general  legacies  are  subject.  To  give  the  legacy 
this  preference,  obviously,  the  testator  must  have  left  property 
to  which  the  widow's  dower  right  attached.  The  proxasion  in 
lieu  of  dower  is  held  to  be  superior  to  specific,  as  well  as  general 


§  449]      SATISFACTION  OF  LEGACIES  BY  THE  EXECUTOR.  399 

legacies;  these  must  abate  if  necessary  to  satisfy  the  same.  But 
whether  specific  devises  of  real  estate  abate  in  favor  of  such  pro- 
vision is  not  so  unanimously  held. 

It  is  also  presumed  that,  by  singling  out  a  specific  article  by 
way  of  a  specific  bequest,  the  testator  intends  that  the  legatee 
shall  take  in  preference  to  those  legatees  whose  bequests  are 
not  specifically  pointed  out;  hence  the  rule  is,  that  specific 
legacies  do  not  abate,  except  in  favor  of  such  legacies  as  were 
given  for  a  valuable  consideration,  or  among  themselves.  It 
has  been  mentioned,  that  all  devises  of  real  estate  are  in  their 
nature  specific;  and  the  question  is  therefore  of  frequent  oc- 
currence, whether  devises  have  preference  over  specific  legacies. 
It  is  now  generally  held,  that,  other  assets  failing  so  that  it 
becomes  necessarj^  to  resort  to  specific  legacies  for  the  payment 
of  debts,  these  abate  ratably  with  specific  devises. 

Demonstrative  legacies,  as  already  pointed  out,  are  classed 
with  specific  legacies  in  this  respect.  If  the  fund  pointed  out  for 
their  pa^Tnent  fail,  they  are  payable  out  of  the  general  assets 
not  spyecifically  bequeathed,  or  out  of  funds  covered  by  residu- 
ary bequests,  and  do  not  abate  with  legacies  general  in  their  na- 
ture. If,  however,  the  fund  out  of  which  a  demonstrative  legacy 
is  made  payable  fails,  or  is  inadequate  to  satisfy  it  in  full,  the 
legatee  has  no  preference  as  to  the  unsatisfied  remainder  of  the 
demonstrative  legacy  over  general  legatees,  but  takes  as  a 
general  legatee,  and  his  legacy  abates  with  other  general  legacies. 

General  legacies  abate  proportionately  if  the  assets  are  not 
sufficient  to  pay  them  all,  unless  an  unequivocal  preference  is 
given  to  some  one  or  more  of  them  by  the  words  of  the  will, 
except  as  to  such  of  them  as  are  given  for  a  valuable  considera- 
tion, which  have  the  same  preference  over  other  general  legacies 
as  above  indicated  in  respect  to  specific  legacies.  Annuities 
stand  on  the  same  ground  with  other  general  legacies,  unless  a 
different  intention  appear  from  the  will  itself.  As  between  the 
general  legacies,  no  preference  results  from  the  order  in  which 
they  are  named,  nor  from  the  use  of  such  terms  as  "firstly," 
"secondly,"  attached  to  the  legacies.  Of  course  such  facts, 
insufficient  in  themselves,  may  have  weight  with  other  consid- 
erations in  arri\dng  at  the  conclusion  that  the  testator  intended 
preferences. 


400  THE  LAW  OF  DECEDENTS'   ESTATES.  [§  450 

Residuary  legacies  can  hardly  be  said  to  abate,  since  the  resid- 
uum is  that  only  which  is  left  after  all  express  or  prior  disposi- 
tions of  the  testator  have  been  satisfied ;  hence  residuary  legatees 
can  in  no  case  call  upon  general  or  specific  legatees  to  abate. 
The  rule  is  of  course  also  true  of  a  residuary  devise.  It  has 
heretofore  been  shown  that  at  common  law  the  real  estate  of 
the  deceased  is  not  liable  for  his  general  debts;  and  that,  while 
all  personalty  goes  to  the  administrator  for  creditors,  and  for 
legatees  or  distributees,  the  realty  goes  to  the  heir  or  devisee 
without  administration.  As  a  proposition  at  common  law, 
therefore,  the  de\'ised  real  estate,  including  the  residuary  devise, 
could  not  be  liable  for  legacies,  even  though  they  constituted  a 
charge  against  all  the  personalty,  unless  the  testator  so  di- 
rected. But  courts  were  astute  to  find  lurking  in  the  testator's 
will  a  direction  to  subject  the  realty  to  the  claims  of  legatees 
as  well  as  of  creditors.  A  leading  illustration  is  the  conclusion 
drawn  from  blending  realty  and  personaltv'  in  the  residuary 
clause  of  the  will.  If  the  testator,  in  the  residuary  clause, 
treats  the  real  and  personal  propertv'  as  forming  one  whole, 
without  distinguishing  the  one  from  the  other,  he  is  presumed 
thereby  to  manifest  an  intention  to  charge  the  general  legacies 
upon  the  land,  because  "residue"  in  such  case  can  only  mean 
what  remains  after  satisfying  the  former  gifts.  There  are  some 
cases  in  which  this  rule  has  been  disregarded,  based  upon  and 
following  the  ruling  of  Chancellor  Kent  in  Lupton  v.  Liipton;  ^ 
but  it  is  said  to  be  well  settled  both  in  England  and  America, 
and  even  the  New  York  cases  now  hold  that,  while  the  blending 
of  the  two  kinds  of  property-  in  the  residuary  clause  is  not  suffi- 
cient of  itself  to  charge  the  real  estate,  yet  it  is  of  great  weight 
in  ascertaining  the  testator's  intention,  which,  of  course,  is 
always  decisive. 

§  450.  Executor's  Assent  to  Devises  and  Legacies.  —  It  follows 
from  the  principle  vesting  the  entire  personal  estate  of  a  de- 
ceased testator  in  his  executor,  that,  before  a  legatee,  whether 
specific,  general,  or  residuary,  can  obtain  a  complete  title  to 
his  legacy,  he  must  obtain  the  executor's  assent  thereto;  so 
that,  if  the  legatee  take  possession  of  his  legacy  wdthout  such 
assent,  the  executor  may  maintain  trespass  or  trover  against 
1  2  Johns.  Ch.  614. 


§  451]      SATISFACTION   OF   LEGACIES   BY  THE   EXECUTOR.  401 

him,  although  the  will  expressly  directs  that  such  consent  shall 
not  be  necessary  to  the  legatee's  right. 

It  is  to  be  observed,  that  the  subject  of  the  executor's  assent 
is  of  little  or  no  importance  in  most  of  the  States,  because  the 
statutes  determine  the  time  and  manner  of  paying  and  deliv- 
ering legacies,  and  point  out  the  conditions  under  which  the 
executor  may  fully  protect  himself  against  liability.  In  such 
States  the  legatee  has  no  right  to  compel  payment  until  an 
order  of  court  is  obtained,  and  this  subject  is  discussed  later. 

§  451.  Time  for  paying  or  delivering  Legacies.  —  Since  the  cred- 
itors of  a  testator  must  all  be  satisfied  before  any  legacy  is  pay- 
able, the  executor  must  be  allowed  a  reasonable  time  to  inform 
himself  of  the  state  of  the  property  and  the  demands  upon  the 
same,  before  the  legatees  can  compel  him  to  satisfy  their  legacies. 
The  period  fixed  by  the  civil  law,  and  acquiesced  in  by  common- 
law  courts,  is  a  year  from  the  testator's  death,  within  which 
the  executor  cannot  be  compelled  to  pay  a  legacy,  although 
directed  by  the  testator  to  be  paid  sooner. 

Where  a  legacy  is  given  upon  a  contingency  or  future  event, 
occurring  more  than  a  year  after  the  testator's  death,  it  is  pay- 
able immediately  upon  the  occurrence  of  such  event.  A  legacy 
given  generally,  subject  to  a  limitation  over  on  a  future  event, 
is  payable  to  the  immediate  legatee,  without  security  to  repay 
the  money  in  case  the  event  should  happen,  unless  it  be  shown 
that  there  is  danger  that  the  property  will  be  wasted,  secreted, 
or  removed,  when  the  court  may  require  security  to  be  given 
by  the  first  taker. 

Where  a  legacy  is  payable  at  twenty-one,  and  the  legatee 
dies  before  reaching  that  age,  it  will,  if  the  interest  is  given 
during  the  minority,  be  payable  to  the  representatives  imme- 
diately after  the  legatee's  death;  but  if  interest  is  not  given, 
they  must  wait  for  the  money  until  the  legatee,  if  living,  would 
have  attained  twenty-one. 

Where  legacies  are  made  payable  at  a  future  time,  the  lega- 
tees may  demand  that  a  sufficient  sum  be  set  apart  therefor; 
or  the  residue  may  be  ordered  to  be  paid  to  the  residuary  lega- 
tee on  his  giving  security  to  pay  the  legacy  when  due. 

In  such  cases  of  appropriation  it  may  become  a  question  upon 
whom  the  loss  shall  fall  in  case  of  depreciation  or  failure  of  the 


402  THE   LAW   OF   DECEDENTS'   ESTATES.        [§§  452,  453 

fund  set  apart,  or  who  shall  benefit  by  its  appreciation.  The 
authorities  are  not  entirely  harmonious  in  this  respect;  but  it 
seems  clear,  on  principle,  that,  where  an  annuity  is  charged 
upon  the  whole  personal  estate,  the  executor  cannot,  by  any 
appropriation,  affect  the  legatee's  right  to  the  full  annuity; 
and  that  where  the  testator  intended  the  retention  or  appro- 
priation of  a  sufficient  sum  to  pay  annuities,  and  payment  of 
the  residue  meanwhile,  all  parties  will  be  bound  by  the  appro- 
priation so  made. 

§  452.  Time  for  paying  Legacies  fixed  by  Statutes.  —  Most  of 
the  States  regulate  the  time  of  paying  or  delivering  legacies  by 
statute,  requiring  tliis  to  be  done  whenever  the  time  has  expired 
within  wliich  creditors  may  prove  their  claims,  and  sufficient 
assets  remain  in  the  executor's  hands  to  pay  all  debts  and  leg- 
acies. By  far  the  greater  number  of  the  States,  however,  allow 
legacies  to  be  paid  before  the  expiration  of  the  time  for  proving 
debts,  if  there  be  assets  for  the  purpose,  on  bond  being  given 
by  the  legatees,  conditioned  that  they  shall  refund  their  due 
proportion  for  the  payment  of  all  debts  and  costs  subsequently 
established  against  the  estate. 

The  time  for  the  payment  of  legacies  without  refunding  bond 
varies  according  to  the  time  allowed  creditors  to  prove  their 
claims.  If  there  are  assets  sufficient,  they  are  payable  on  final 
settlement,  or  whenever  it  appears  that  no  further  claims  of 
creditors  can  be  established;  if  the  assets  are  insufficient  to  pay 
all  legacies  in  full,  they  are,  on  such  showing,  payable  in  the 
order  heretofore  indicated,  abating  yro  rata  as  to  any  class  that 
cannot  be  paid  in  full.^ 

§  453.  Payment  of  Bequests  for  Life  with  Remainder  over.  — 
Where  a  testator  bequeaths  a  residue  consisting  of  money,  or 
property  whose  use  is  the  conversion  into  money,  with  remainder 
to  another,  it  is  the  duty  of  the  executor  either  to  take  security 
from  the  life  tenant  protecting  the  interest  of  the  remainder- 
man, or  to  convert  the  fund  into  cash  and  invest  it  for  the  bene- 
fit of  all  who  are  entitled  under  the  will. 

^Mien  the  personalty  willed  to  a  person  for  life  with  remainder 
over  to  others,  includes  perishable  property,  either  such  as  is 

1  For  further  details  as  to  statutes,  see  Woemer  on  Administration, 
§455. 


§  453]      SATISFACTION   OF  LEGACIES   BY  THE   EXECUTOR.  403 

consumed  in  its  use  {e.  g.,  hay,  wine),  or  such  as  deteriorates 
in  use  {e.  g.,  furniture,  an  automobile),  questions  naturally  arise 
as  to  the  relative  rights  of  life  tenant  and  remainderman.  May 
the  life  tenant  drink  the  wine,  and  wear  out  the  automobile? 
The  intention  of  the  testator,  if  discernible,  must  govern.  But 
when  the  will  does  not  answer  the  question,  courts  must  resort 
to  rules  of  construction. 

A  distinction  is  drawn  between  such  a  gift  to  one  for  life 
with  remainder  over,  of  a  specific  article,  and  a  general  gift  of  the 
estate,  or  of  the  residue,  including  such  perishable  or  deterio- 
rating articles.  If  the  testator  leaves  a  vehicle  to  a  friend  with 
provision  that  on  the  death  of  the  first  named  friend  it  shall 
go  to  another,  he  clearly  expects  the  first  named  legatee  to 
use  the  gift  freely.  The  remainderman  can  only  claim  what 
may  chance  to  remain.  But  if,  after  special  and  general  leg- 
acies, the  will  disposes  of  a  residue,  including  with  stocks 
and  bonds  also  wine  and  hay,  to  one  for  life  with  remainder 
over,  it  would  seem  probable  that  the  testator  intended  the 
wine  and  hay  to  be  sold,  and  the  proceeds  added  to  the  corpus 
of  the  estate.    Such  is  the  rule  of  construction. 

Taking  up  the  first  case,  the  bequest  of  specific  articles,  the 
tenant  for  life  is  entitled  to  the  possession  and  use  of  property 
so  bequeathed  as  long  as  he  lives,  and  if  such  possession  or 
use  wear  out,  damage,  or  wholly  destroy  the  same,  the  remain- 
derman is  without  remedy.  Hence  the  specific  bequest  for  life 
of  such  articles  as  ipso  usu  consumuntur  (corn,  hay,  wine,  pro- 
visions, etc.)  constitutes  an  absolute  gift  to  the  tenant  for  life, 
although  there  be  a  limitation  over,  unless  the  first  taker  die 
before  the  property  has  been  consumed  or  has  perished.  And 
where  the  specific  gift  is  of  articles  which  are  not  consumed  by 
use,  but  only  deteriorated  or  worn  out  (furniture,  plate,  farm- 
ing utensils,  etc.),  the  remainder  is  good,  but  the  life  tenant 
is  entitled  to  the  use  and  possession  of  the  articles  without  giving 
security.  But  in  such  case,  the  remainderman  is  entitled  to 
have  an  inventory  filed  of  the  goods,  and  if  he  show  that  there 
is  real  danger  of  wanton  waste,  or  fraudulent  secretion  or  re- 
moval of  the  property,  a  court  of  chancery  will  compel  the  life 
tenant  to  give  security  for  the  protection  of  the  remainderman. 

When  the  article  is  not  consumed  in  the  use,  but  merely  de- 


404  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  454 

teriorates  thereby  (e.  g.,  implements  of  husbandry,  household 
furniture)  the  life  tenant  is  bound  to  keep  it  up;  but  he  is  not 
bound  to  increase  it,  the  rule  being  that  the  tenant  for  life  is 
entitled  to  the  increment  of  personal  property  made  during 
his  tenancy,  as  compensation  for  the  trouble  and  expense  of 
taking  care  of  the  property.  Hence  the  remainderman  is  en- 
titled only  to  what  remains  of  the  original  stock.  The  property 
is  to  be  maintained  and  preserved  as  a  whole,  in  as  good  condi- 
tion as  to  productive  capacity  as  when  received;  and  while  the 
life  tenant  is  not  responsible  for  deterioration  occurring  without 
his  fault,  he  and  his  personal  representatives  are  liable  to  the 
remainderman  for  any  property  converted  to  his  own  use; 
as  to  such  property  as  is  not  consumed  by  its  use,  the  life 
tenant  is  regarded  in  equity  as  a  trustee  for  the  remainderman. 

It  is  well  settled,  according  to  the  maxim,  Qui  sentit  commo- 
dum  sentire  debit  et  onus,  that  the  life  tenant  must  pay  all 
ordinary  taxes,  assessments,  interest  on  encumbrances,  and 
charges  for  ordinary  repairs,  out  of  the  income. 

When  the  bequest  of  the  perishable  article  is  not  specific, 
but  is  contained  in  a  general  gift  of  the  estate,  or  in  a  gift  of 
the  residue,  the  life  tenant,  as  stated  before  in  this  section, 
does  not  have  the  use.  The  perishable  property  is  converted 
into  cash,  or  other  permanent  investment,  and  the  life  tenant 
receives  the  interest  on  the  value  from  the  death  of  the  testator.^ 

Gradually  the  meaning  of  perishable  property  has  been  en- 
larged, so  as  to  include  securities  of  a  wasting  nature,  or  any 
form  of  investment  of  an  uncertain  kind,  or  attended  with 
risk.^  In  Healey  v.  Tappan,^  ships,  whose  period  of  best  use- 
fulness is  of  short  duration,  were  ordered  sold.  At  the  time  they 
produced  an  annual  income  of  forty  per  cent  on  their  cost. 

§  454.  Resort  to  General  Estate  when  Annuity  Fund  fails.  — 
When  the  testator  directs  a  definite  sum  to  be  paid  to  a  person 
annually  for  life,  and  provides  for  setting  aside  a  fund  for  the 
purpose,  difficulties  may  arise  if  the  fund,  through  subsequent 
events,  proves  inadequate  for  the  annual  payment  for  the  in- 
come.   Shall  the  deficiency  in  the  annuity  be  made  up  by  the 

^  The  doctrine  is  established  by  Howe  v.  Dartmouth,  7  Ves.  137. 

2  Buckingham  v.  Morrison,  136  111.  437. 

^  45  N.  H.  263,  a  leading  case  in  this  country. 


§§455,456]    SATISFACTION  OF  LEGACIES  BY  THE  EXECUTOR.     405 

general  estate?  These  bequests  of  annuities  must  be  distin- 
guished from  bequests  of  annual  interest  from  a  fund  desig- 
nated by  the  testator  himself.  No  matter  for  what  reason  such 
fund  or  its  interest  fails,  since  it  is  the  sole  source  of  income  fixed 
by  the  testator,  the  rest  of  the  estate  cannot  be  called  on  for  the 
deficiency.  But  if  the  testator,  without  bequeathing  any  fund, 
leaves  an  annuity  by  will  and  directs  the  appropriation  of  a 
fund  suflScient  to  yield  an  annuity  of  a  certain  sum,  and  subse- 
quently such  annuity  falls  below  the  sum  named  by  reason  of 
depreciated  interest  on  the  investment,  the  annuitant  is  entitled 
to  have  the  deficiency  made  up  from  the  residuary  estate. 
When  the  estate  for  a  number  of  years  is  insufficient  to  pay 
the  annuity,  but  subsequently  there  is  a  surplus,  if  the  language 
of  the  will  will  warrant  it,  the  deficiency  of  the  previous  years 
may  first  be  made  up  out  of  the  surplus.  But  whether  the  prin- 
cipal of  a  fund,  the  income  of  which  is  set  apart  to  pay  an 
annuity,  can  be  broken  into  to  make  good  arrearages  in  such 
annuity,  depends  upon  the  intention  of  the  testator  as  gathered 
from  the  whole  will. 

§  455.  Profits  as  constituting  Income  for  Life  Tenant.  —  Dur- 
ing the  life  estate  increases  may  accrue  to  which  the  life  tenant 
has  no  claim.  Thus  appreciation  in  value  of  unproductive 
property  is  part  of  the  corpus  of  the  estate,  and  not  of  the  in- 
come; but  rents  and  royalties  from  coal  leases  are  income,  al- 
though the  mines  were  not  opened  during  the  testator's  lifetime, 
and  payable,  as  such,  to  the  legatee  for  life.  Where  a  loss  occurs 
in  a  trust  for  the  benefit  of  one  for  life  and  another  in  remainder, 
because  of  insecurity  of  the  particular  investment,  it  is  to  be 
apportioned  between  them  in  the  proportion  which  the  princi- 
pal sum  lost  bears  to  the  interest  due  upon  it  at  the  time  when 
the  loss  is  determined. 

§  458.  Relative  Rights  of  Life  Tenants  and  Remaindermen  to 
Dividends  of  Stock.  —  It  is  self-evident  that  ordinary  periodical 
dividends  declared  by  a  corporation  as  profits  or  earnings 
on  its  stock  go  to  the  shareholders  of  the  stock  at  the  time,  and 
therefore  to  those  legatees  to  whom  the  testator  may  have  be- 
queathed the  shares  or  the  income,  profit,  or  dividends  thereof, 
for  life.  But  great  difficulty  is  experienced,  in  some  cases,  in 
determining  whether  a  dividend  declared  represents  earnings 


406  THE  LAW  OF  DECEDENTS'   ESTATES.  [§  457 

in  the  proper  sense,  distributable  among  the  shareholders 
without  diminution  of  the  capital  stock,  or  whether  it  is  but  a 
new  shape  into  which  the  capital  stock  is  transformed,  whereby 
no  profits  are  distributed.  There  is  much  difference  of  opinion 
as  to  the  relative  rights  of  life  tenants  and  remaindermen  to 
extraordinary  dividends,  bonuses,  or  additional  stock  distrib- 
uted among  the  stockholders.  On  the  one  hand,  it  is  held  that 
nothing  is  income  from  the  stock  of  a  corporation  until  the  cor- 
poration itself  has  set  it  apart  as  income,  and  declared  it  to  be 
payable  as  dividend.  Without  permitting  inquiry  as  to  source, 
courts  holding  this  doctrine  make  stock  dividends  part  of  the 
corpus  of  the  estate,  and  award  dividends  in  money  or  property 
to  the  life  tenant.  Such  is  the  holding  in  England  and  the 
Supreme  Court  of  the  United  States.^ 

Under  what  is  called  the  Pennsylvania  rule,  on  the  other 
hand,  an  inquiry  is  made  as  to  when  the  dividend,  in  whatever 
shape  declared,  was  earned.  So  much  of  the  dividend  as  was 
earned  prior  to  the  testator's  death  goes  to  the  corpus  of  the 
estate;  the  balance  is  income,  and  goes  to  the  life  tenant.^ 

§  457.  Interest  on  Legacies.  —  Interest,  in  the  sense  in  which 
the  word  is  used  in  connection  with  the  payment  of  legacies,  is 
the  compensation  allowed  by  law  for  the  deprivation  of  a  leg- 
acy or  distributive  share  beyond  the  period  when  it  is  payable 
according  to  the  terms  of  a  will  or  statute.  As  a  general  rule, 
therefore,  interest  is  payable  from  the  time  when  a  legacy  ought 
to  be  paid  until  the  time  when  payment  is  made.  This  time  is, 
as  heretofore  indicated,  one  year  after  the  testator's  death,  un- 
less a  different  time  is  fixed  by  the  will,  or  by  provision  of  the 
statute.  Hence,  general  legacies  bear  interest  from  the  expira- 
tion of  one  year  after  the  testator's  death. 

Specific  legacies  do  not  come  within  the  general  rule,  be- 
cause, it  is  said,  they  are  considered  as  separated  from  the  gen- 
eral estate,  and  appropriated  at  the  time  of  the  testator's 
death.  Hence,  whatever  produce  accrues  upon  them  from  that 
time  on  belongs  to  the  legatee,  and,  if  there  be  successive  leg- 
atees, each  is  entitled  to  the  income  during  the  time  he  is  en- 
titled to  the  corpus.    Thus,  where  there  is  a  specific  legacy  of 

1  Gibbons  v.  Mahon,  136  U.  S.  549. 

2  Earp's  Appeal,  28  Pa.  St.  368,  374. 


§  458]      SATISFACTION   OF   LEGACIES  BY  THE  EXECUTOR.  407 

shares  of  stock,  the  dividends  go  to  the  legatee  from  the  death 
of  the  testator;  and  where  Uvestock,  cows,  mares,  or  ewes, 
etc.,  are  bequeathed,  the  legatee  is  entitled  to  any  increase 
between  the  death  of  the  testator  and  the  assent  of  the  executor. 
The  general  rule  as  to  interest  is  held  not  to  extend  to  leg- 
acies to  a  child  by  a  parent,  or  one  in  loco  parentis.  Such  leg- 
acies are  held  to  carry  interest  from  the  testator's  death,  so 
as  to  constitute  a  provision  for  maintenance,  whether  so  ex- 
pressed by  the  testator  or  not,  if  no  other  provision  is  made  by 
him  for  the  support  of  the  legatee.  This  exception  is  confined 
to  infants. 

A  legacy  given  to  a  widow  in  lieu  of  dower  has  likewise  been 
held  to  carry  interest  from  the  testator's  death,  if  the  testator 
has  made  no  other  provision  for  her  support  during  the  first 
year,  though  this  is  denied  in  England  and  in  several  States  of 
this  country. 

The  rule  according  to  which  interest  is  payable  on  general 
legacies  is  not  affected  by  the  condition  of  the  estate,  so  that 
the  executor  have  assets  to  meet  it.  Thus,  where  no  time  for 
payment  is  specified  in  the  vAW,  legacies  bear  interest  from  the 
end  of  the  first  year  after  the  testator's  death,  although  assets 
may  not  have  come  to  the  hands  of  the  executor  until  long  after- 
wards. 

The  rate  of  interest  is  generally  that  allowed  by  the  State 
on  ordinary  contracts.  No  demand  is  necessary  to  entitle  the 
legatee  to  interest. 

§  458.  Interest  when  Time  of  Pajrment  is  fixed  by  the  Will.  — 
The  rule  giving  interest  on  general  legacies  from  one  year  after 
beginning  of  administration  is  based  on  the  idea  that  they  then 
become  payable.  When  the  testator  directs  the  legacy  to  be 
paid  at  another  time,  the  rule  fails  with  its  reason.  The  legacy 
bears  interest  from  the  time  for  payment;  and  it  is  immaterial, 
in  this  respect,  whether  the  legacy  is  or  is  not  a  vested  one. 
For  although  a  legacy  to  one  payable  when  he  attains  a  certain 
age  vests  in  the  legatee  upon  the  testator's  death,  yet  he  is  not 
entitled  to  interest  thereon  until  he  has  reached  the  appointed 
age;  nor  does  his  dying  before  that  time  entitle  his  personal 
representatives  to  claim  the  legacy,  or  interest  on  it,  sooner 
than  if  the  legatee  had  lived.    So  if  a  legacy  is  directed  to  be 


408  THE   LAW  OF  DECEDENTS*   ESTATES.        [§§  459,  460 

paid,  or  invested,  within  a  time  named  by  the  testator,  it  will 
not  carry  interest  until  the  expiration  of  the  period  named. 

But  under  the  exception  for  infants  mentioned  in  the  pre- 
ceding section  the  interest  runs  from  death,  even  though  the 
will  provides  a  later  period  for  payment. 

Thus,  an  infant  legatee,  for  whose  maintenance  no  other 
provision  is  made,  is  entitled  to  interest  on  his  legacy  from  a 
parent,  or  one  standing  in  loco  parentis,  from  the  testator's 
death,  although  the  legacy  itself  is  not  payable  until  he  reaches 
a  certain  age. 

Although  the  testator  fix  a  given  time  for  the  legacy,  his  in- 
tention that  interest  thereon  shall  be  payable  from  any  other 
time  must  be  carried  into  effect,  if  such  intention  is  made  ap- 
parent in  the  will.  So,  where  the  testator  directs  payment  of 
a  legacy  when  the  legatee  attains  a  certain  age,  with  interest, 
such  legacy  will  bear  interest  from  the  end  of  the  year  after 
the  testator's  death. 

§  459.  Interest  on  Annuities.  —  A  bequest  of  an  income  or 
annuity  is  payable  from  the  testator's  death,  because  his  in- 
tention to  provide  a  support  for  the  legatee  is  otherwise  not 
complied  with,  and  bears  interest  where  interest  is  payable 
thereon  from  the  time  when  the  first  payment  is  due  and  is 
not  made.  But  since  the  executor  cannot  be  compelled  to  pay 
a  general  legacy  within  a  year  of  the  testator's  death,  so,  it 
seems,  no  interest  can  be  charged  from  any  period  within  that 
time.  It  is  said  in  England,  that,  generally  speaking,  courts  of 
equity  refuse  interest  on  arrears  of  annuities  given  by  will,  unless 
the  person  charged  with  the  annuity  is  obliged  to  seek  relief 
in  equity,  when  the  court  will  require  him  to  pay  the  arrears 
due  with  interest;  but  American  courts  incline  to  allow  such 
interest,  particularly  where  the  annuity  is  charged  upon  land, 
or  another  legacy,  and  there  is  default  in  the  payment. 

§  460.  Persons  Competent  to  receive  Payment  of  Legacies.  — 
It  is  a  general  rule  that  executors  must  see,  at  their  peril,  that 
they  pay  legacies  to  persons  legally  authorized  to  receive  them. 
In  the  United  States,  payment  may  be  made  of  an  infant's 
legacy  to  his  lawfully  constituted  guardian,  or  to  one  or  more 
of  his  several  guardians.  Payment  to  the  infant  himself,  or 
his  parent,  or  other  relative  or  person,  is  no  protection  against 


§  461]      SATISFACTION   OF   LEGACIES  BY  THE   EXECUTOR.  409 

the  claim  of  the  legatee  on  his  attaining  majority,  or  of  a  legally 
constituted  guardian  before  the  majority  of  the  legatee;  but 
while  the  payment  should  regularly  be  made  to  the  guardian, 
yet  in  the  absence  of  bad  faith  such  disbursements  as  would 
have  been  approved  had  they  been  made  by  a  guardian  of  the 
infant  will  be  allowed  to  the  administrator. 

The  interest  on  bequests  by  parents,  or  those  in  loco  parentis, 
to  infant  legatees,  is  allowed  to  them  from  the  death  of  the  tes- 
tator, and  courts  will,  if  they  have  no  other  means  of  support, 
decree  its  application  for  their  maintenance.  In  cases  of  ex- 
treme urgency  the  court  will  allow  maintenance  for  the  infant 
out  of  the  capital  fund,  even  when  inconsistent  with  the  dis- 
position made  by  the  testator;  but  this  is  done  only  in  extreme 
cases.  \^Tiere  there  is  some  complication  upon  payment  of  a 
legacy  to  an  infant,  statutes  of  many  States  will  be  formed  to 
give  relief  in  various  contingencies.  But  the  subject  cannot  be 
elaborated  here.^ 

A  married  woman's  power  over  her  legacy,  and  consequently 
her  right  to  receive  it,  discharging  the  executor,  is  practically 
governed  in  most  States  by  statutes  modifying  or  abolishing 
the  husband's  control  of  the  wife's  property.  Apart  from  such 
statutes,  if  the  legacy  is  to  her  separate  use  and  benefit,  the 
married  woman  can  give  the  executor  a  good  discharge  in  her 
own  name.    Otherwise  the  legacy  must  be  paid  to  the  husband. 

On  the  presumption  of  death  arising  from  seven  year's  un- 
explained absence,  the  representatives  of  the  legatees  may  be 
paid;  the  court  in  such  case  usually  requiring  security  from 
the  presumptive  legatees  to  refund  in  case  of  the  legatee's 
return. 

§  461.  The  Doctrine  of  Election,  in  its  application  to  ques- 
tions arising  under  vnlh,  grows  out  of  the  equitable  principle 
which  estops  one  who  accepts  a  benefit  under  a  deed  or  will 
from  asserting  a  right  inconsistent  with  its  validity.  If,  there- 
fore, a  testator  undertakes  to  dispose  of  property  belonging  to 
another,  and  devises  to  that  other  lands,  or  bequeaths  personal 
property  to  that  other,  the  latter  will  not  be  permitted  to  keep 
his  own  property  and  also  enjoy  the  fruits  of  such  devise  or 
bequest,  but  must  elect  whether  he  will  part  with  his  own 
1  See  Woemer  on  Administration,  §  460. 


410  THE  LAW  OF  DECEDENTS'   ESTATES.  [§  462 

estate  and  accept  the  provisions  of  the  will,  or  keep  his  own 
property  and  reject  that  bequeathed. 

To  apply  this  doctrine,  it  must  be  clear  that  the  testator 
actually  intended  to  dispose  of  property  belonging  to  another. 
The  doubt  arises  most  frequently  when  the  testator  has  an 
interest  with  another  in  the  property  disposed  of.  If  the  will 
means  only  to  dispose  of  the  testator's  interest,  the  necessary 
facts  for  an  election  are  wanting;  and  courts  will  interpret  the 
will  as  limited  to  the  testator's  interest  unless  the  contrary  is 
clear  by  direct  statement  or  by  necessary  implication.  But  if 
the  will  is  construed  as  disposing  of  the  property  of  the  other, 
there  is  a  case  for  election,  even  though  the  testator's  act  was 
based  on  error  in  fact,  and  he  was  not  aware  that  his  will  dealt 
with  the  property  of  others. 

In  case  the  donee  elects  to  retain  his  own  property,  given  to 
another  by  the  will,  the  interest  or  fund  that  would  have  passed 
to  the  former  will  be  applied  to  secure  compensation  to  the 
disappointed  parties,  and  the  surplus  remaining  after  making 
such  compensation,  if  any  remains,  wdll  be  restored  to  the 
donee. 

If  a  legatee  die  before  he  has  had  an  opportunity  of  exercising 
his  right  of  election,  he  will  be  presumed  to  take  under  the  will, 
if  its  provisions  are,  as  a  whole,  beneficial  to  him.  It  has  been 
held,  that,  where  there  is  a  right  of  election  in  legatees  to  take 
the  proceeds  of  property  devised  to  be  sold,  or  the  property 
itself,  a  court  of  equity  may  elect  for  an  infant  legatee,  if  such 
appear  to  be  for  his  interest  and  advantage;  but  this  view  has 
been  criticised  as  permitting  the  court  to  make  a  will  for  the 
testator. 

§  462.  Payment  of  the  Residue.  —  After  all  debts,  expenses  of 
administration,  and  legacies  have  been  discharged  by  the  ex- 
ecutor, or  administrator  with  the  will  annexed,  the  residue  of 
the  personal  estate  is  payable  to  the  residuary  legatee,  if  any 
has  been  named.  The  executor's  right  to  the  surplus,  as  it 
existed  at  common  law,  has  been  everywhere  abolished,  and 
the  subtleties  it  involved  may  be  left  unnoticed. 

The  residue,  as  already  mentioned,  is  that  part  of  a  testator's 
estate  not  otherwise  disposed  of;  hence  a  general  residuary 
bequest  carries  with  it  everji^hing  not  in  terms  disposed  of,  and 


§  462]     SATISFACTION  OF  LEGACIES  BY  THE  EXECUTOR.  411 

with  such  exceptions  as  are  pointed  out  in  connection  with  the 
subject  of  lapsed  and  void  legacies,  everything  not  effectually  or 
well  disposed  of,  as  well  as  lapsed  legacies,  unless  a  contrary 
intent  clearly  appear  from  the  will.  No  particular  form  of  "words 
is  necessary  to  constitute  a  residuary  legatee;  any  expression 
is  sufficient  from  which  the  testator's  intention  is  discernible 
that  the  person  designated  shall  take  the  surplus.  Nor  is  it  of 
controlling  consequence  that  the  clause  is  not  the  last  of  the 
disposing  provisions,  though  such  is  the  usual  position. 

It  seems  that  the  word  "money"  is  often  and  popularly  used 
as  the  equivalent  of  "property,"  and  when  given  in  a  residuary 
clause  is  frequently  construed  by  courts,  both  in  England  and 
America,  to  include  the  personal  estate  of  the  testator. 


§  463]  PROCEDURE  IN  OBTAINING  ORDER  OF  SALE.  413 


TITLE   SEVEN. 

OF   THE  APPLICATION  OF   THE  ASSETS  FOR   THE 
PAYMENT   OF   DEBTS   AND    LEGACIES. 


PART  I. 


OF  THE  LIABILITY  OF  REAL  ESTATE  FOR  THE  DEBTS 
OF  DECEASED  PERSONS. 


CHAPTER  L. 

OF  THE  PROCEDURE  IN   OBTAINING  THE   ORDER   OF  SALE. 

§  463.  Nature  of  the  Power  to  sell  Real  Estate  for  the  Payment 
of  Debts.  —  It  has  been  shown  in  an  earlier  chapter,  that  in 
most  of  the  States  the  executor  or  administrator  has  no  in- 
terest in,  or  title  to,  the  real  estate  of  his  deceased  testator  or 
intestate,  save  a  naked  power  to  sell  or  lease  the  same,  upon 
the  order,  generally,  of  the  probate  court,  the  exercise  of  which 
is  conditioned  upon  an  insufficiency  of  personal  assets  to  pay 
the  debts  of  the  deceased.  This  power  is  purely  statutory; 
each  State  prescribes  the  conditions  and  circumstances  under 
which  a  sale  of  the  real  estate  may  be  authorized,  as  well  as 
the  method  of  procedure  in  selling.  It  results  from  the  peculiar 
nature  of  probate  courts,  that  in  some  of  the  States  the  validity 
of  the  sales  is  made  dependent  upon  a  very  rigid  and  literal 
compliance  on  the  part  of  the  courts,  as  well  as  of  executors 
and  administrators,  with  the  statutory  requirements;  very 
slight  deviations  therefrom,  or  negligence  on  the  part  of  the 
court  or  its  officers  in  making  the  record  entries,  have  been 
held  sufficient  to  avoid  the  sale,  even  in  collateral  proceedings. 
The  anxiety  of  courts  to  vindicate  the  validity  of  judicial  sales 
should  not  be  relied  on  as  a  pretext  for  the  carelessness  of  exec- 


414  THE  L.iW  OF  decedents'   ESTATES.     '  [§§  464,  46o 

utors  and  administrators,  or  the  supineness  of  probate  courts, 
in  the  several  steps  necessary  for  the  sale  of  real  estate.  Even 
if  the  sale  should  be  held  good  as  against  a  collateral  attack,  — 
and  it  is  distressingly  uncertain  to  what  extent  the  trial,  and 
even  appellate,  courts  will  go  in  that  direction,  —  yet  many 
acts  of  commission  or  omission  which  will  not  be  allowed  to 
invalidate  the  transaction  in  a  collateral  investigation  may  in 
a  direct  proceeding  subject  the  administrator  to  serious  liability, 
the  estate  to  loss  and  delay,  and  all  parties  concerned  to  vexa- 
tious and  oftentimes  ruinous  litigation. 

The  power  to  order  the  sale  of  real  estate  to  enforce  the  pay- 
ment of  a  decedent's  debts,  if  the  personal  estate  is  insufficient, 
is  ascribed  to  chancery  courts,  and  is  generally  exercised  by  them 
upon  the  application  of  creditors,  in  those  States  in  which  such 
jurisdiction  is  not  vested  exclusively  in  probate  courts. 

Where  the  statute  provides  that  application  shall  be  made  to 
the  probate  court,  that  court  has  usually  exclusive  jurisdiction. 
And  in  such  case,  if  the  real  estate  be  situated  without  the 
county,  yet  the  court  of  the  county  where  the  administration 
has  been  taken  out  is  the  proper  court  to  make  the  order  to 
sell. 

§  464.  Sale  by  Executor  under  Power  in  Will.  —  Where  the 
executor  has  power  under  the  will  to  sell  realty  for  the  payment 
of  debts,  it  is  not  necessary  to  make  application  to  the  probate 
court;  and  the  executor's  bona  fide  vendee  under  the  power  takes 
a  good  title  which  cannot  be  divested  by  a  subsequent  order  of 
the  probate  court  to  sell  for  payment  of  debts  under  the  stat- 
ute.^ But  of  course  a  power  to  sell  for  the  sole  benefit  of  de- 
visees (e.  g.,  to  sell  and  divide  proceeds  among  devisees)  must 
remain  subject  to  the  sale  for  creditors  in  the  statutory  method. 
A  creditor  is  not  compelled  to  look  to  a  devisee  whose  devise 
is  charged  with  the  payment  of  the  debt;  the  administrator 
may,  in  such  case,  if  the  personalty  is  insufficient,  obtain  leave 
to  sell  the  real  estate. 

§  465.     Who  may  apply  for  the  Order  to  sell  Real  Estate.  — 
Application  to  chancery  courts  to  order  the  real  estate  of  a  de- 
ceased person  to  be  sold  for  the  payment  of  his  debts  is  usually 
made  by  one  or  more  of  the  creditors,  the  executor  or  admiiiis- 
*  Iowa  Loan  &  Trust  Co.  v.  Holderbaum,  86  Iowa  1. 


§  466]  PROCEDURE   IN  OBTAINING   ORDER  OF  SALE.  415 

trator  and  the  devisees  or  heirs  being  made  parties  to  the  pro- 
ceedings. But  it  is  provided  by  statute  in  most  of  the  States 
that  the  appHcation  shall  be  made  by  the  executor  or  admin- 
istrator to  the  probate  court,  whenever  it  appears  that  the 
personal  assets  are  insufficient  for  the  payment  of  the  debts; 
and  the  power  is  in  such  case  usually  exclusively  in  the  probate 
court.  The  application  can  be  made  by  the  administrator, 
or  by  any  one  interested  in  the  estate. 

§  466.  Within  what  Tims  Application  may  be  made.  —  The  ne- 
cessity for  a  prompt  and  speedy  settlement  of  the  administra- 
tion of  the  estates  of  deceased  persons,  in  order  that  creditors 
may  be  satisfied  and  devisees  and  heirs  be  put  in  the  indis- 
putable possession  of  their  inheritance  as  early  as  a  just  regard 
for  the  rights  of  creditors  will  permit,  requires  a  limitation 
upon  the  time  when  either  creditors  or  executors  and  adminis- 
trators may  apply  for  the  subjection  of  real  estate  to  the  pay- 
ment of  debts.  A  few  States  have  statutory  regulations  as  to 
the  time  within  which  the  application  must  be  made;  and  for 
the  protection  of  heirs,  devisees,  and  their  grantees  under  vary- 
ing conditions.^  But  in  most  States  Statutes  of  Limitation  do 
not  apply. 

It  is  admitted  by  all  the  authorities,  that  in  the  absence  of 
statutory  regulation  of  the  subject,  it  is  the  duty  of  courts  to 
determine  what  shall  be  considered  a  reasonable  time  in  this 
respect,  and  to  refuse  the  application  if  the  parties  who  demand 
it  have  been  guilty  of  palpable  laches. 

In  equity,  under  ordinary  circumstances,  the  doctrine  of 
laches  can  be  invoked  when  the  Statute  of  Limitations  would 
bar  an  analogous  proceeding  at  law.  This  principle  is  recog- 
nized in  probably  all  States  when  application  for  sale  of  realty 
is  made  in  probate  court.  There  is  a  difference  of  view,  how- 
ever, as  to  the  statute  that  should  be  applied.  In  one  list  of 
States  the  general  Statute  of  Limitations  furnishes  the  stand- 
ard; in  others  it  is  the  special  Statute  of  Non-claim,  fixing  the 
time  within  which  claims  must  be  presented  for  allowance. 
It  must  be  remembered  that  the  refusal  of  the  application  rests 
on  the  exercise  of  the  judge's  equitable  discretion,  and  that 
special  circumstances  can  take  the  case  out  of  the  rule  above 
^  See  Woemer  on  Administration,  §  465. 


416  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  467 

stated.  The  fact  that  the  deceased  owned  realty  may  be  dis- 
covered only  after  lapse  of  considerable  time  without  negligence 
in  administrator  or  creditors.  The  unexpected  result  of  pro- 
longed litigation  may  suddenly  render  the  personalty  inade- 
quate for  creditors.  There  are  several  cases  in  which  the  order 
has  been  granted  after  more  than  ten  years,  because  the  cir- 
cumstances explained  the  dela}^  and  rebutted  laches. 

§  467.  Notics  of  the  Application  to  Heirs  and  Devisees.  —  Since 
the  executor  or  administrator  does  not,  in  most  of  the  States, 
represent  the  devisee  or  heir  in  the  matter  of  paying  the  debts 
of  the  deceased,  holding  for  that  purpose  the  personalty,  which 
is  the  primary  fund  out  of  which  they  must  be  paid,  he  assumes 
a  relation  rather  antagonistic  to  the  heirs  whenever  he  seeks 
to  subject  the  real  estate,  which  has  descended  not  to  him,  but 
to  them,  to  sale  for  the  payment  of  debts.  Hence,  before  there 
can  be  a  valid  order  divesting  them  of  their  title  by  a  sale  for 
the  payment  of  debts,  they  must  have  an  opportunity  to  be 
heard,  and  to  contest  not  only  the  necessity  or  propriety  of  the 
sale,  but  also  the  justice  and  validity  of  the  debts  for  the  pay- 
ment of  which  the  sale  is  demanded.  There  can  be,  therefore, 
no  valid  order,  decree,  or  license  for  the  sale  of  real  estate  to 
pay  debts  without  notice  to  the  parties  interested,  in  some 
form,  either  by  actual  personal  service  or  by  publication.  A 
sale  without  notice  is  void.  Even  where,  as  is  held  in  many 
States,  the  proceeding  is  in  rem,  binding  upon  all  parties  claim- 
ing under  the  decedent  without  special  notice  to  them,  analogous 
to  the  doctrine  applied  in  admiralty  with  respect  to  prize 
property,  or  in  common-law  courts  to  property  seized  under 
attachment,  there  must  be  notice,  corresponding  to  the  monition 
in  admiralty,  to  all  the  world.  The  hearing  must  be  at  the  time 
or  term  which  is  specified  in  the  notice,  whether  given  by  actual 
service  upon  the  parties,  or  by  publication;  if  the  application 
is  not  passed  upon  or  continued  at  such  time,  the  order,  if 
granted  at  any  other  time,  will  be  held  void  as  being  without 
notice. 

The  heirs,  devisees,  or  any  other  person  interested  in  the 
real  estate  to  be  affected  by  an  order  of  sale,  may  appear  on 
the  trial  or  hearing  of  the  application,  and  make  themselves 
parties,  if  necessary,  to  oppose  the  order  of  sale,  and,  if  un- 


§  468]  PROCEDURE   IN   OBTAINING   ORDER  OF  SALE.  417 

successful  in  the  probate  court,  they  may  appeal  from  its 
decision. 

In  some  of  the  States  the  appointment  of  a  guardian  ad  litem 
is  a  necessary  prerequisite  to  an  order  of  sale  of  the  real  estate 
of  minor  heirs.  Unless  the  statute  requires  the  appointment 
of  a  guardian  ad  litem,  the  sale  will  be  valid  without,  in  direct 
as  well  as  in  collateral  proceedings. 

§  468.  "What  the  Petition  must  show.  —  Upon  the  sufficiency 
of  the  petition  the  jurisdiction  of  the  probate  court  most  fre- 
quently depends.  Unless  it  appear  from  its  averments  that 
debts  which  the  decedent  had  contracted  during  his  lifetime 
are  still  unpaid,  and  that  there  are  not  personal  assets  sufficient 
to  discharge  them,  but  real  estate  which  is  liable  for  their  pay- 
ment, the  court  will  have  no  power  to  order  or  license  such  sale, 
and  therefore  any  order  so  made,  and  any  sale  thereunder  must 
be  void  or  at  least  voidable.  To  this  end  there  should  be  a 
schedule  or  detailed  account  of  the  personal  property  available, 
or  that  could  be  made  available,  for  the  payment  of  debts, 
filed  with  or  made  part  of  the  petition;  also  a  list  of  the  debts 
due  and  remaining  unpaid,  and  an  inventory  of  the  real 
estate. 

In  some  States  it  is  held  that  the  petition  is  fatally  defective 
if  it  omit  a  statement  of  the  personal  property  and  its  value; 
while  in  other  States  a  reference  to  the  general  inventory,  or  a 
statement  that  the  decedent  left  no  personal  property,  or  that 
the  personal  property  as  appraised  is  not  available,  has  been 
held  sufficient,  at  least  in  collateral  proceedings. 

The  debts  or  claims  must,  in  most  States,  be  first  adjudicated, 
or  established,  before  there  can  be  a  valid  sale  of  real  estate  to 
satisfy  the  creditors,  while  in  others  this  is  not  required,  but 
may  be  proved  subsequently. 

The  inventory  of  the  real  estate  must  also  be  made  part  of, 
or  filed  with,  the  petition;  and  that  portion  which  is  intended 
to  be  sold  must  be  described  with  sufficient  particularity  to 
enable  it  to  be  indentified. 

The  description  in  the  petition  is  allowed,  in  some  States,  to 
be  corrected  from  the  papers  in  the  case;  while  in  others  the 
amendment  of  the  description  of  real  estate  is  held  to  consti- 
tute a  new  petition,  requiring  proceedings  de  novo. 


418  THE   L-\W  OF  decedents'   ESTATES.        [§§469,470 

§  469.  Proof  of  the  Existence  of  Debts.  —  The  existence  of  the 
unpaid  debts  for  which  the  sale  of  realty  is  asked,  must  be 
proved.  The  schedule  of  debts  filed  with  the  petition,  even 
though  sworn  to,  does  not  prove  itself.  The  use  of  the  formal 
allowances  of  the  creditor's  claims  by  the  probate  court  as 
evidence  on  a  hearing  for  sale  of  realty  is  not  free  from  doubt. 
The  administrator  was  the  defendant  at  the  hearing  on  these 
claims,  and  it  is  argued  that  the  heirs  or  devisees  as  such  were 
not  parties  to  such  a  proceeding,  and  should  not  be  bound  by 
it.  In  jNIissouri  and  in  North  Carolina  the  devisees  and  heirs 
are  held  bound  by  the  allowance  as  being  in  privity  mth  the 
administrator;  but  generally  the  allowance  is  admitted  as  prima 
facie  evidence  only,  subject  to  attack. 

The  debts  so  proved  to  exist  must  be  such  as  were  contracted 
by  the  deceased  himself.  No  sale  of  real  estate  will  be  ordered 
to  pay  expenses  of  administration  alone,  or  any  debts  incurred 
by  the  executor  or  administrator,  after  the  death  of  the  tes- 
tator or  intestate,  except  funeral  expenses. 

^Miere  an  executor  or  administrator  has  paid  debts  of  the 
decedent  in  excess  of  the  personal  assets  of  the  estate,  he  will 
be  subrogated  in  equity  to  the  rights  of  the  creditors  whose 
debts  he  has  discharged. 

There  seems  to  be  no  objection  on  principle  to  the  exercise 
of  this  power  by  probate  courts,  on  behalf  of  the  executor 
subrogated  to  creditors.  The  sale  of  real  estate  by  order  of 
probate  courts,  to  reimburse  administrators  or  executors  who 
paid  debts  of  the  deceased  out  of  their  own  means,  in  default 
of  sufficient  personal  assets,  has  been  held  valid  in  several 
States;  but  it  is  unsafe,  in  States  where  this  question  has  not 
been  settled  by  judicial  decision  or  statutory  enactment,  to 
rely  upon  the  power  of  the  probate  court  to  order  the  sale  of 
real  estate,  if  it  be  necessary,  before  such  order  can  legally  be 
made,  to  exercise  the  equitable  power  of  subrogation. 

§  470.  Proof  of  Insufficiency  of  the  Personalty.  —  The  personal 
assets  must  be  shown  insufficient  to  pay  debts  at  the  time  of  the 
application.  This  condition  may  have  existed  ever  since  the 
grant  of  letters,  or  may  have  been  occasioned  by  subsequent 
events.  But  in  the  latter  case,  if  the  deficiency  was  occasioned 
by  any  fault  of  the  administrator  it  is  held  in  most  of  the  States 


§§471,472]       PROCEDURE   IN   OBTAINING   ORDER   OF   SALE.       4lO 

that  all  remedies,  including  proceedings  on  the  administrator's 
bond,  must  be  exhausted  before  an  order  for  sale  of  realty  wall 
be  granted. 

Whether  the  land  may  be  subjected  to  sale  by  creditors, 
where  the  personal  assets  have  been  squandered  by  the  execu- 
tor or  administrator,  and  all  remedies  have  been  exliausted 
against  him  and  his  sureties  without  success,  is  not  very  clear, 
and  has  been  held  differently  in  different  States.  The  weight 
of  authority  seems  to  authorize  the  sale  of  realty  under  such 
circumstances.^ 

§  471.  Defence  of  Heir  or  Devisee  to  Application  for  Sale.  —  The 
heir  or  devisee  defending  against  the  application  may  of  course 
introduce  evidence  on  all  matters  necessary  for  obtaining  the 
order.  He  may  attack  the  creditors'  claims,  or  show  that  they 
are  barred  by  limitation;  he  may  show  that  the  administrator 
has  other  assets,  or  that  the  deficiency  arises  from  the  admin- 
istrator's devastavit.  But  the  validity  of  the  appointment  of 
the  administrator  cannot  be  questioned  on  such  hearing;  nor 
can  the  title  of  the  deceased  to  the  land  proposed  to  be  sold 
be  passed  on,  nor  any  collateral  questions  of  trespass,  boundary, 
delay  in  settlements,  etc.  If  it  appear  that  the  title  is  disputed, 
and  that  by  reason  thereof  the  sale  would  be  made  under  dis- 
advantageous circumstances,  it  is  proper  to  stay  proceedings 
until  the  title  may  be  ascertained  in  a  court  of  competent  juris- 
diction. 

Furthermore,  if  the  heirs,  or  any  of  them,  will  give  bond  for 
the  payment  of  the  debts,  and  to  hold  the  administrator  harm- 
less, no  order  for  the  sale  of  land  will  be  granted. 

§  472.  What  Interest  of  the  Decedent  in  Lands  may  be  ordered 
to  be  sold.  —  Any  interest  in  land,  whether  legal  or  equitable,  in 
possession  or  reversion,  including  inchoate  equities,  is  liable  for 
the  debts  of  the  owner,  and  may  after  his  death  be  sold,  if  ne- 
cessary to  obtain  the  means  of  payment. 

Pre-emption  claims  descend  to  the  heirs,  who  take  them  as 
original  parties  freed  from  claims  against  the  ancestor.  Lands 
entered  in  the  name  of  an  original  settler  after  his  death  are 
not  liable  for  his  debts,  and  a  sale  of  them  by  an  administrator, 
under  order  of  the  probate  court,  is  void. 

'  See  Woemer  on  Administration,  §  470. 


420  THE  LAW  OF  DECEDENTS'   ESTATES.        [§§473,474 

In  some  States  an  administrator  will  not  be  permitted  to  sell 
property  held  adversely  by  a  third  person;  he  must  first  recover 
possession.  The  reason  of  such  a  rule  is  held  to  be  the  imprac- 
ticability of  giving  possession  to  the  purchaser  under  such  cir- 
cumstances, and  the  consequent  depression  of  the  price  which 
such  a  sale  would  bring. 

Since  the  rights  of  creditors  are  paramount  to  those  of  heirs 
and  de\asees,  the  validity  of  sales  by  the  personal  representative 
for  the  pa\Tnent  of  debts,  within  the  time  and  under  the  re- 
quirements fixed  by  law,  is  not  affected  by  any  previous  alien- 
ation by  the  heirs  or  devisees;  the  pm-chaser  at  such  sale  takes  a 
title  superior  to  that  of  the  purchaser  from  them. 

§  473.  Of  the  Bond  and  Oath  required  of  Executors  and  Admin- 
istrators. —  Since  the  real  estate  is  not  assets  available  to  the 
executor  or  administrator  until  it  appears  that  the  personal 
estate  is  insufficient  to  pay  the  debts  of  the  deceased,  it  is  held 
in  some  States  that  the  conditions  of  the  original  administra- 
tion bond  do  not  include  the  proceeds  of  real  estate,  so  that 
the  sureties  on  such  bond  are  not  liable  for  the  loss  or  misap- 
plication of  the  funds  arising  out  of  the  sale  of  lands.  Hence  a 
new  bond,  conditioned  faithfully  to  administer  the  assets  arising 
out  of  the  sale  of  real  estate,  is  held  necessary,  in  some  of  the 
States,  before  there  can  be  an  order  for  the  sale;  and  when  re- 
quired by  statute,  and  neglected  to  be  given,  the  sale  is  generally 
held  void.  In  other  States,  where  the  statute  does  not  require 
a  new  bond  to  be  filed  in  contemplation  of  the  sale  of  real  es- 
tate, there  is  little  doubt  that  the  original  administration  bond, 
if  conditioned  faithfully  to  administer  the  estate,  is  sufficient 
to  cover  and  protect  the  assets  arising  out  of  the  sale. 

For  a  similar  reason,  the  executor  or  administrator  is  re- 
quired, in  some  of  the  States,  to  take  an  oath  before  selling  real 
estate  upon  the  order  of  the  probate  court,  and  sales  are  some- 
times held  void  where  the  administrator  had  omitted  to  take 
such  oath.  But  long  acquiescence  by  the  heirs,  and  other  cir- 
cumstances tending  to  show  the  publicity  and  fairness  of  the 
sale,  will  raise  a  presumption  from  which  it  may  be  inferred 
that  the  oath  has  been  taken. 

§  474.  The  Order,  License,  or  Decree  to  sell.  —  The  order, 
Hcense,  or  decree  to  sell  constitutes  the  warrant  of  power  to 


§  474]  PROCEDURE   IN   OBTAINING   ORDER  OF  SALE.  421 

the  executor  or  administrator  to  sell,  without  which,  based  on 
a  proper  petition,  the  sale  is  void,  and  should  be  certain  and 
specific  in  its  terms,  accord  with  the  petition,  describe  the  land 
to  be  sold  with  sufficient  accuracy  for  its  identification,  specify 
the  place  of  sale,  and  prescribe  the  method,  whether  public  or 
private,  and  terms  thereof,  as  well  as  direct  the  manner  of 
advertising. 

It  is  irregular  to  order  the  whole  of  the  real  estate  to  be  sold 
in  gross,  unless  it  appear  that  by  the  sale  of  a  part  the  residue 
would  be  greatly  injured,  or  that  it  would  plainly  be  beneficial 
to  heirs  and  creditors  to  sell  the  whole.  A  defective  order  of 
sale  cannot  be  aided  in  equity.  An  order  made  subsequent  to 
the  sale  is  void. 

If  the  proceedings  have  not  resulted  in  a  valid  sale,  the  title 
to  the  real  estate  has  not,  of  course,  been  affected,  and  the  order 
of  sale  may  be  renewed;  or,  if  before  the  sale  is  effected,  some 
defect  in  the  proceeding  is  discovered,  for  instance,  that  the  de- 
scription of  the  real  estate  in  the  petition  or  order  is  erroneous 
or  incomplete,  a  new  order  may  be  based  upon  the  amended 
petition  or  corrected  proceeding.  But  where  a  valid  sale  pro- 
duces an  insufficient  amount  to  pay  all  the  debts,  there  must 
be  a  new  proceeding  based  upon  a  new  notice  to  the  heirs;  an 
order  based  upon  the  old  petition,  without  new  notice,  for  the 
sale  of  further  real  estate,  is  void. 


422  THE  L-^W   OF  decedents'   ESTATES.        [§§  475,  476 


CHAPTER  LI. 

OF  THE   SALE  AND   ITS   CONSUMMATION. 

§  475.  Time  of  Selling.  —  The  executor  or  administrator  sell- 
ing under  order  of  the  probate  court  must  strictly  pursue  the 
authority  under  which  he  acts.  He  has  no  discretion,  except 
as  to  the  mode  of  conducting  the  sale  so  as  to  secure  the  highest 
price,  within  the  scope  pointed  out  by  the  statute  or  order  of 
sale. 

The  sale  must  be  made  at  the  time  appointed  by  the  court,  or, 
if  no  time  is  mentioned  in  the  order,  within  the  statutory  dura- 
tion of  the  license,  if  any  be  provided.  If  the  authority  of  the 
court  under  whose  order  the  administrator  is  acting  ceases,  his 
authority  ceases  also,  and  liis  subsequent  acts  under  such  order 
are  void. 

But  the  removal  of  the  administrator  after  the  filing  of  a 
petition  for  the  sale  of  lands  to  pay  debts,  or  even  after  the  order 
of  sale,  is  no  reason  for  dismissing  the  proceedings;  they  should 
be  continued  by  the  successor  as  soon  as  he  is  appointed  and 
qualified. 

§  476.  Notice  or  Advertisement  of  the  Sale.  —  Provision  is 
made  in  the  statutes  of  the  several  States  requiring  publication 
of  the  time,  place,  and  terms  of  the  proposed  sale,  together  with 
a  description  of  the  property  offered.  This  is  generally  provided 
to  be  by  posting  notices  at  a  number  of  public  places  in  the 
county  or  vicinity,  or  by  publication  in  a  newspaper  for  a  stated 
length  of  time  before  the  day  of  sale,  or  by  both  these  methods 
of  giving  notice.  The  statutory  requirements  as  to  publication 
must  be  strictly  complied  with  or  the  sale  is  voidable.  A  pub- 
lication in  any  other  language  than  English  in  most  States  is 
bad.  The  publication  must  be  continuous  in  the  same  news- 
paper for  the  whole  time  required  by  the  statute,  and  where 
the  publication  was  required  to  be  daily,  an  interval  of  one 
day  was  held  fatal. 


§  477]  OF  THE   SALE  AND   ITS   CONSUMMATION.  423 

Where  the  law  or  the  order  of  court  requires  notice  of  the 
sale  to  be  posted  in  pubhc  places,  it  must  be  shown  in  the  re- 
turn or  report  of  sale  that  the  places  of  posting  were  public 
places;  a  description  of  them  is  not  sufficient.  Publication  made 
in  accordance  with  the  statutory  provision,  under  an  order 
erroneously  directing  advertisement  in  a  different  manner,  was 
held  to  be  in  compliance  with  law.  The  notice  must  state  the 
time  and  place  of  sale,  or  the  sale  will  not  be  good.  A  sale  will 
not  be  set  aside  because  the  description  of  the  premises  to  be 
sold  was  not  full  if  it  did  not  mislead  the  bidders;  and  if  the 
advertisement  is  sufficient  to  put  a  man  of  ordinary  prudence 
on  inquiry,  and  such  an  inquiry  would  readily  disclose  the  true 
facts,  a  misdescription  in  the  advertisement  will  not  release 
the  bidder  from  complying  with  his  bid. 

The  day  of  sale  must  be  set  out  with  sufficient  precision  to 
enable  those  who  may  wish  it  to  be  present  as  bidders.  A 
misstatement  of  the  day,  or  the  statement  of  an  impossible 
day,  will  render  the  sale  void. 

It  must  be  remembered,  however,  that  in  most  States  the 
judgments  of  probate  courts  are  not  open  to  collateral  attack. 
The  statement  that  sales  on  inadequate  publication  in  cases 
above  given  are  void,  must  be  understood  in  the  light  of  that 
doctrine.  In  a  direct  proceeding  the  error  in  advertisement 
can  be  shown  by  direct  evidence.  It  can  also  be  sho-um  by  the 
record  in  a  collateral  proceeding  that  the  advertisement  is  fa- 
tally defective.  But  if  the  record  shows  that  the  court  in  its 
approval  of  the  sale  found  that  there  was  proper  advertisement, 
evidence  dehors  the  record  will  not  be  received  to  impeach  the 
sale  in  a  collateral  proceeding.^  But  the  distinction  between 
advertisement  of  the  sale  and  publication  of  a  notice  to  bring 
in  heirs  or  devisees  to  the  hearing  on  the  application  must  not 
be  overlooked.  The  latter  is  jm-isdictional,  and  error  therein 
is  open  to  collateral  attack. 

§  477.  Appraisement  required  before  the  Sale.  —  The  statutes 
of  nearly  all  of  the  States  require  the  property  to  be  sold  to  be 
first  appraised  —  usually  by  three  disinterested  freeholders  of 
the  county  in  which  the  land  lies  —  before  it  can  be  legally 
sold.  Such  appraisement  is  necessary  to  guide  the  discretion 
1  Robbins  v.  Boulware,  190  Mo.  33. 


424  THE   LAW   OF  DECEDENTs'  ESTATES.  [§  47S 

of  the  court  in  approving  or  disapproving  the  sale,  and  as  a 
means  of  furnishing  prima  facie  evidence  of  value  in  questions 
affecting  the  liability  or  fides  of  executors  or  administrators 
and  purchasers.  What  has  been  heretofore  said  as  to  the  ap- 
praisement of  personal  property  is  applicable,  in  a  general 
way,  to  the  functions  and  duties  of  the  appraisers  of  real  es- 
tate, subject  of  course  to  such  modifications  as  may  result  from 
the  statutory  provisions  regulating  the  subject. 

The  sale  of  real  estate  by  an  executor  or  administrator  with- 
out first  having  had  the  same  appraised  is  an  irregularity  which 
will  cause  it  to  be  set  aside  in  a  direct  proceeding  for  that  pur- 
pose, and  the  purchaser  cannot  in  such  case  be  compelled  to 
comply  with  the  terms  of  sale.  But  in  most  States  the  sale  is 
not  on  this  account  absolutely  void  in  a  collateral  proceeding. 

§  478.  Conducting  the  Sale.  —  In  selling  the  real  estate  of  a 
deceased  person,  the  executor  or  administrator  must  act  within 
the  scope  of  his  powers  under  the  statute,  and  according  to  the 
directions  contained  in  the  order  of  sale.  He  is  personally 
liable  on  his  bond  for  the  consequences  of  any  deviation  there- 
from. Since  he  has  no  power  to  sell  without  order  or  decree  of 
court,  an  agreement  or  bond  made  by  him  before  obtaining 
such  order  to  sell  the  land  of  the  deceased  is  utterly  void,  in- 
capable of  being  enforced  at  law  or  in  equity.  It  is  held  to  be 
against  public  policy  to  allow  the  administrator  to  place  him- 
self in  a  position  where  the  exercise  of  his  lawful  authority 
would  be  influenced  or  controlled  by  previous  contracts  binding 
upon  him.  Such  an  agreement  may,  however,  render  the  exec- 
utor or  administrator  liable  in  damages  to  the  person  with  whom 
he  has  contracted. 

Inasmuch  as  the  authority  of  the  administrator  is  derived 
from  the  order  of  sale,  he  has  no  authority  to  change  or  vary 
the  terms  and  conditions  therein  stated,  and  can  sell  only  so 
much  land  as  is  specified  or  indicated  therein;  if  he  sell  more, 
the  sale  is  void  at  least  as  to  the  excess. 

The  statements  and  representations  made  by  the  adminis- 
trator at  the  time  of  the  sale  bind  the  estate  only  as  to  such 
matters  as  are  prescribed  in  the  order,  or  concerning  which  he 
has  discretionary  power;  hence,  the  estate  is  not,  for  instance, 
bound  by  his  representations  of  the  validity  of  the  title.    But 


§  479]  OF  THE  SALE  AND   ITS   CONSmiMATION.  425 

within  the  scope  of  his  authority  he  may  bind  both  the  pur- 
chaser and  the  estate,  by  statements  pubhcly  made  in  connec- 
tion with  the  sale,  or  by  agreement  with  the  purchaser.  Thus 
he  may  agree  to  pay  off  a  mortgage  constituting  an  encumbrance 
upon  the  land  offered  for  sale,  and  such  agreement  is  binding  if 
not  in  violation  of  the  terms  of  the  order  or  statute,  but  is 
void  otherwise.  In  the  absence  of  statutory  authority  to  the 
contrary  the  sale  must  be  conducted  by  the  executor  or  admin- 
istrator in  person.  The  court  can  appoint  neither  the  sheriff, 
nor  the  creditor,  nor  any  person  but  the  executor  or  admin- 
istrator, to  do  so.  It  would  seem  that,  as  a  general  rule,  in 
analogy  with  the  doctrine  denying  to  a  trustee  the  power  to 
delegate  his  discretionary  authority,  the  administrator  cannot 
authorize  an  agent  or  attorney  in  fact  to  make  the  sale.  But 
a  few  of  the  older  cases  sustain  sales  by  agents.  The  adjourn- 
ment of  a  sale  may  be  announced  by  an  attorney  in  the  absence 
of  the  administrator,  and  the  sale  made  upon  the  day  to  which 
it  was  adjourned  is  not  thereby  invalidated.  The  act  is  non- 
discretionary,  and  clearly  can  be  delegated. 

It  is  held  in  some  States,  that  if,  from  the  extremity  of  the 
weather  or  other  unavoidable  cause,  there  be  no  bidders  pres- 
ent, of  if  the  competition  be  so  low  that  the  property  would 
not  bring  above  one-half  its  value,  it  is  the  duty  of  the  admin- 
istrator to  adjourn  the  sale  to  some  future  day;  and  a  sale  on 
such  adjourned  day,  if  the  adjournment  was  bona  fide,  will  be 
sustained. 

§  479.  Report  and  Confirmation  of  the  Sale.  —  To  enable  the 
probate  court  to  examine  into  the  doings  of  the  administrator 
in  respect  of  the  sale  of  real  estate,  and  to  determine  whether 
he  has  complied  with  all  the  requirements  of  the  statute  and 
of  the  order  of  the  court  touching  the  same,  it  is  the  duty  of 
the  executor  or  administrator  to  report  to  the  court  what  he 
has  done  in  the  premises.  Until  confirmed,  the  sale  is  incom- 
plete, and  no  title,  either  legal  or  equitable,  passes  to  the  purchaser. 
The  confirmation  or  approval  of  the  sale  by  the  court  is  the 
judicial  ascertainment  of  its  validity  and  legality,  and  the  decree 
so  made  cannot  thereafter,  in  any  collateral  proceeding,  be 
questioned,  except  in  the  few  States  in  which  the  judgments  of 
probate  courts  are  collaterally  assailable.    Upon  the  confirma- 


423  THE  LAW   OF  decedents'   ESTATES.  [§  480 

tion  the  purchaser  is  entitled  to  a  deed  and  therefore  to  the  rent; 
he  is  bound  to  pay  the  purchase-money,  and  assumes  the  hazard 
of  accidental  destruction  of  the  property. 

Where  several  tracts  or  parcels  of  ground  have  been  sold  and 
are  returned  in  one  report,  the  sale  may  be  confirmed  as  to 
one  or  more  parcels  or  tracts,  and  vacated  as  to  others. 

On  the  report  of  sale  it  is  the  duty  of  the  court  to  inquire  into 
the  circumstances  connected  with  the  transaction,  examining 
the  administrator,  purchaser,  or  other  witnesses,  if  necessary, 
and  to  exercise  a  judicial  discretion  as  to  approval  of  the  sale. 
On  the  report  the  heirs,  devisees,  or  other  parties  interested  in 
the  realty  are  entitled  to  be  heard,  and  in  addition  to  attacking 
all  that  occurred  subsequent  to  the  order  of  sale,  may  show  that 
such  order  should  not  have  been  granted  on  grounds  mentioned 
in  §  471,  ante. 

It  is  on  this  ground  that  a  court  of  equity  will  decline  to  va- 
cate a  sale  approved  by  the  probate  court,  in  the  absence  of 
proof  that  the  probate  decree  is  inequitable,  and  that  the  party 
complaining  could  not  have  availed  himself  of  it  in  the  probate 
court. 

Mere  inadequacy  of  the  price  obtained  is  not  sufficient  to 
authorize  a  refusal  to  confirm  the  sale,  unless  the  court  be 
satisfied  that  upon  a  resale  a  better  price  will  be  secured.  The 
reasonable  probability  of  realizing  an  advance  of  ten  per  cent 
upon  the  amount  rejwrted  as  bid  has  been  held  to  justify  an 
order  for  a  new  sale. 

The  power  to  review  or  set  aside  a  judgment  or  decree  con- 
firming a  sale  after  the  expiration  of  the  term  at  which  it  was 
rendered  does  not,  in  the  absence  of  statutory  enactment  to 
that  effect,  reside  in  probate  courts. 

Equity  will  set  aside  such  sales  and  the  judgments  whereon 
they  are  based  on  the  same  grounds  and  under  the  same  limi- 
tations which  apply  to  setting  aside  the  judgments  of  other 
courts  of  record. 

§  480.  Payment  of  the  Purchase-Money.  —  It  is  the  duty  of 
the  administrator  to  collect  the  purchase-money  for  the  land 
sold  before  making  a  deed. to  the  purchaser,  at  least  so  much  of 
it  as  was,  by  the  terms  of  sale,  to  be  paid  in  cash.  Neither  heir 
nor  legatee  as  purchaser  can  retain  any  part  of  the  purchase 


§  4S1]  OF  THE   SALE  AND   ITS   CONSTOOIATION.  427 

price  on  the  score  of  what  may  be  ultimately  coming  to  them 
out  of  the  estate.  The  same  is  true  of  a  creditor  purchasing: 
he  cannot  retain  out  of  the  purchase-money  a  sum  equal  to  his 
demand  against  the  estate,  because  all  creditors  have  an  in- 
terest in  the  estate,  and  the  share  to  which  each  is  entitled  must 
be  first  determined  by  the  court.  Yet  an  administrator  may 
agree  with  a  creditor,  that  if  he  become  the  purchaser  his  claim 
may  be  deducted  from  the  purchase-money  to  the  extent  of  the 
dividend  to  which  it  may  be  entitled ;  but  such  agreement  must 
be  clearly  proved  and  entered  into  in  perfect  good  faith,  or  it 
will  not  constitute  a  defence  in  an  action  for  the  purchase- 
money. 

If  the  purchaser  fail  to  pay  the  price  bid  by  him,  the  admin- 
istrator should  resell  the  property-;  but  it  seems  wise,  if  not 
absolutely  necessary,  that  he  should  report  the  fact  of  non- 
payment, and  obtain  an  order  of  court  to  resell.  The  court  does 
not  lose  its  jurisdiction  to  order  a  resale,  even  after  confirmation, 
until  a  sale  has  actually  been  consummated.  Such  an  order  to 
resell  is  conclusive  upon  the  former  pm-chaser,  if  he  have  notice 
that  a  motion  to  that  effect  will  be  made.  The  purchaser  re- 
fusing to  comply  with  the  terms  of  the  sale  may  be  compelled 
to  do  so;  or  he  may  be  held  liable  for  any  difference  bet^veen  his 
bid  and  any  lower  price  which  may  be  realized  on  the  second 
sale.  But  the  administrator  must  proceed  to  resell  wdthin  a 
reasonable  time;  if  he  delay,  his  right  to  recover  for  the  differ- 
ence will  be  lost,  unless  the  delay  is  caused  by  the  request  or 
agreement  of  the  bidder. 

If  payment  of  the  purchase-money,  or  any  part  of  it,  be 
deferred  by  the  terms  of  the  sale,  it  is  the  administrator's  duty 
to  obtain  security  therefor,  in  default  of  wliich  he  becomes  per- 
sonally liable  for  the  amount  due.  If  the  security  wliich  he 
takes  turns  out  to  be  worthless,  he  is  prima  facie  liable ;  and  if 
he  takes  security  by  reason  whereof  the  vendor's  lien  is  waived, 
he  becomes  personally  liable,  whether  the  security  he  took  was 
originally  good  or  not. 

§  481.  The  Deed  of  Conveyance.  —  Statutes  authorizmg  the 
sale  of  decedents'  lands  for  the  pajTiient  of  their  debts  contem- 
plate, and  can  contemplate,  nothing  more  than  the  transfer, 
by  means  of  such  sale,  of  the  interest  or  estate  of  the  decedent 


428  TPiE  L.\w  OF  decedents'  estates.  [§  481 

to  the  purchaser.  Executors  and  administrators  are  the  agents 
or  instruments  of  the  law  to  accompUsh  this  purpose.  The  le- 
gitimate office  of  the  words  of  conveyance  in  an  executor's  or 
administrator's  deed  is  to  effect  this  object,  and  must  be  con- 
strued with  an  eye  thereto.  Nowhere  is  the  principle,  that 
general  words  of  a  releasor  or  grantor  are  to  be  restrained  to  the 
occasion,  more  fully  applicable  than  to  such  deeds.  So  far  as 
covenants  and  words  of  warranty  in  an  administrator's  deed 
are  fairly  referable  to  their  official  capacity  or  duty,  their 
effect  is  limited  to  the  estate  alone,  and  they  in  no  manner 
affect  the  personal  right  or  liability  of  the  administrator. 
Thus,  where  a  widow,  administratrix,  in  executing  specifically 
articles  of  sale  by  her  deceased  husband,  under  order  of  the 
Orphan's  Court,  conveyed  all  her  husband's  estate  and  her 
own  since  his  death,  in  law  and  equity  she  was  held  not  barred 
of  her  dower,  which  w^as  the  only  personal  interest  she  had  in 
the  land.  Her  interest  conveyed  was  hmited  to  her  official 
interest  as  executrix. 

But  the  executor  or  administrator  may  bind  himself  by  an 
express  and  voluntary  covenant  collateral  with  his  official  act; 
and  where  he  chooses  to  add  to  the  ordinary  obligations  of  an 
administrator's  deed  a  personal  convenant  of  his  own,  the  better 
to  insure  the  conveyance,  he  will  be  held  personally  to  respond 
to  the  full  scope  of  the  covenant.  Such  a  covenant  is  not  within 
the  scope  of  his  official  duty  or  authority,  which  he  cannot 
change  by  any  act  of  his  own;  hence  the  estate  in  such  case  is 
not  bound,  but  only  himself  personally. 

The  deed  of  an  executor  or  administrator  should  show  upon 
its  face  the  authority  under  which  it  was  given,  with  sufficient 
certainty  to  enable  the  act  done  to  be  traced  to  the  authority 
vested  in  him ;  for  such  a  deed  conveys  no  title  unless  executed 
pursuant  to  the  decree  or  order  of  some  court  of  competent 
jurisdiction.  It  is  not  essential,  though  certainly  advisable, 
that  all  the  steps  in  the  proceeding  prior  to  the  execution  of  the 
deed  should  be  therein  recited.  Their  omission  does  not  vitiate 
the  deed;  and  erroneous  recitals  may  be  corrected  by  the  record. 
Deeds  have  been  held  sufficient,  not  reciting  the  authority  by 
which  given,  but  referring  to  the  same,  and  the  administrator 
describing  himself  as  such;  even  though  the  signature  was 


§  481]  OF  THE   SALE  AND   ITS   CONSUMMATION.  429 

individual  without  reference  to  official  authority,  when  the 
capacity  in  which  he  acted  appeared  in  some  part  of  the  deed. 
An  administrator's  sale  passes  no  title  until  a  deed  is  executed 
and  delivered;  but  where  the  sale  is  otherwise  complete,  equity 
will  compel  the  delivery  of  a  deed  and  the  payment  of  the  pur- 
chase-money, or  the  probate  court  may  compel  its  execution  in 
conformity  with  a  sale  made  under  its  order,  and  duly  confirmed. 
Delay  in  the  delivery  of  the  deed  beyond  the  time  specified  in 
the  terms  of  sale,  in  consequence  of  objection  made  to  the  con- 
firmation of  the  sale,  does  not  release  the  purchaser,  and  when 
made  and  delivered,  it  relates  back  to  the  confirmation  of  the 
sale,  and  confers  the  same  title  as  if  it  had  been  executed 
immediately. 


430  THE   LAW   OF   DECEDENTS*   ESTATES.  [§  4S2 


CHAPTER  LII. 

OF  THE  CONSEQUENCES  ATTENDING  THE  SALE. 

§  482.  Application  of  the  Proceeds.  —  In  England,  and  in 
those  of  the  American  States  in  which  the  Enghsh  doctrine  lias 
not  been  modified  by  statute,  real  estate  devised  to  be  sold  for 
the  payment  of  debts,  and  money  raised  by  the  sale  of  property 
so  devised,  are  equitable  assets,  differing  from  legal  assets  in 
being  applicable  to  the  payment  of  debts  without  regard  to 
their  dignity  or  grade.  But  the  general  doctrine  in  America  is, 
even  in  equity,  that  all  assets  coming  to  the  executor  or  ad- 
ministrator by  virtue  of  his  office,  are  legal  assets,  to  be  disposed 
of  in  the  course  of  administration,  in  the  manner  pointed  out  by 
statute.  Hence  the  proceeds  of  the  sale  of  real  estate,  if  neces- 
sary for  the  payment  of  debts,  are  distributable,  like  personal 
property,  under  order  of  the  probate  court. 

By  the  sale  the  real  estate  is  converted  into  money.  But  the 
conversion  is  complete  and  effectual  only  to  the  extent  and  for 
the  purposes  for  which  the  sale  was  authorized,  whether  by  the 
will,  or  by  the  order  of  the  court.  So  far  as  these  purposes  do 
not  extend,  and  in  so  far  as  any  of  them  do  not  take  effect  in 
fact  or  in  law,  the  property  retains  its  former  character  in  re- 
spect of  the  rights  of  its  owner,  and  passes  accordingly.  The  sur- 
plus of  the  proceeds  of  a  sale  ordered  for  the  payment  of  debts 
remaining  after  the  debts  and  expenses  of  administration  have 
been  discharged  retains  the  character  of  real  estate  for  the  pur- 
pose of  determining  who  is  entitled  to  receive  it,  and  goes  to 
the  persons  to  whom  the  real  estate  would  have  gone  but  for 
the  conversion.  This  principle  applies  as  fully  to  sales  by  the 
executor  under  the  will,  as  to  sales  under  order  of  the  probate 
court.  But  such  surplus  goes  as  money  nevertheless,  and  there- 
fore when  the  heir  or  devisee  dies  before  such  surplus  is  paid 
to  him  passes  to  his  personal  representative  even  though  the 
land  may  not  have  been  sold  during  his  lifetime. 


§  483]       OF  THE   CONSEQUENCES  ATTENDING  THE  SALE.  431 

The  purchaser  at  an  unauthorized  sale  by  the  executor  will, 
if  the  proceeds  were  applied  to  the  payment  of  debts  of  the 
estate,  be  subrogated  to  the  rights  of  the  original  creditors, 
who  were  paid  off  with  the  proceeds  of  the  sale.  This  equity 
for  the  purchaser  cannot,  of  course,  be  allowed  to  affect  the 
rights  of  such  persons  as  did  not  share  in  the  proceeds. 

The  creditor  of  an  heir  may  reach  the  proceeds  of  the  sale  of 
real  estate  due  to  him,  in  chancery. 

The  expenses  of  a  sale  of  real  estate  ought  to  be  paid  out  of 
the  proceeds. 

§  483.  Purchaser's  Liability  for  Encumbrances.  —  It  is  evident 
that  the  purchaser  at  an  administrator's  sale  can  acquire  only 
that  interest  in  the  property  sold  which  the  deceased  owned  at 
the  time  of  his  death.  The  rights  of  others,  holding  by  a  title 
superior  or  equal  to  that  of  the  deceased  debtor,  cannot  be 
affected  by  the  proceedings  in  the  probate  court.  It  follows 
that,  without  some  statutory  provision  or  special  order  of  the 
court  to  the  contrary,  the  piu^chaser  takes  at  the  administra- 
tor's sale  subject  to  all  liens,  mortgages,  dower  interests,  claims 
to  homestead,  or  titles  of  whatever  nature  which  are  superior 
to  the  title  of  the  deceased  debtor. 

Such  a  sale,  where  the  purchaser  takes  the  title  of  the  deceased 
subject  to  claims  which  may  be  unascertained  in  amount,  or 
even  dependent  on  contingencies  beyond  calculation,  must  be 
unfavorable  for  the  estate.  It  is  nevertheless  the  only  course 
under  the  statutes  of  many  States. 

In  these  States,  if  the  administrator  is  compelled  to  pay  off 
the  mortgage  debt  out  of  the  general  assets  of  the  estate  ob- 
tained by  a  sale  of  the  equity,  he  will  have  a  clear  equity  against 
the  purchaser  for  reimbursement,  and  this,  too,  out  of  the  land 
itself.  But  in  others  it  is  made  optional  with  probate  courts 
to  order  the  property  to  be  sold  subject  to  existing  liens,  or  for 
the  discharge  of  liens.  If  land  is  sold  by  order  of  the  probate 
court  which  is  bound  by  the  lien  of  a  judgment  or  attachment, 
the  holder  of  the  lien,  if  the  estate  be  insolvent,  is  entitled  to 
have  it  first  satisfied  out  of  the  proceeds  of  the  sale,  if  the  pur- 
chaser takes  it  free  from  the  liens,  as  he  must  if  the  lien  is  trans- 
ferred to  the  proceeds. 
Taxes  due  to  the  State  or  to  municipal  corporations  consti- 


432  THE   L,\W   OF  DECEDENTS     ESTATES.  [§  4S4 

tute  an  encumbrance  which,  in  the  absence  of  statutory  pro- 
vision, or  direction  contained  in  the  order  of  sale  to  the  contrary, 
the  purchaser  must  pay.  But  taxes  accruing  while  the  real 
estate  is  in  the  possession  of  the  heirs  are  payable  by  them,  be- 
cause they  are  entitled  to  the  rents;  and  such  as  accrue  on  real 
estate  which  goes  to  the  executor  or  administrator  are  pa^'able 
by  him,  and  the  purchaser  has  the  right  to  have  them  dis- 
charged out  of  the  purchase  money. 

§  484.  Purchaser's  Liability  to  Dowress  and  Homestead  Tenants. 
—  The  widow's  dower  being  a  right  beyond  the  control  of  the 
husband  during  his  lifetime,  is  equally  out  of  the  reach  of  his 
executors,  administrators,  and  creditors.  Hence,  a  sale  of  real 
property  is,  in  nearly  all  the  States,  always  subject  to  the  widow's 
dower,  unless  the  widow,  by  her  voluntary  act,  join  in  the  sale 
and  convey  her  dower  interest  in  the  land,  in  which  case  she  is 
entitled  to  the  value  of  her  dower  out  of  the  proceeds  of  the 
sale,  free  from  the  claim  of  any  set-off  which  the  purchaser  may 
have  against  her.  The  value  of  such  dower  may  be  ascertained 
by  computing  the  value  of  the  annuity  to  which  she  will  be 
entitled  for  the  duration  of  her  life,  according  to  the  mortality 
tables.  The  widow,  like  any  other  person  sui  juris,  may,  by 
her  representations  inducing  a  purchaser  to  buy,  estop  herself 
from  claiming  dower  in  the  land  bought  by  him.  Wliere  she 
sells  as  administratrix  under  order  of  the  court,  without  reserv- 
ing her  dower  or  excepting  it  in  the  deed  of  conveyance,  it  is  not 
affected  by  such  sale. 

Lands  assigned  to  a  widow  as  her  dower  may  be  sold  for  the 
pajment  of  debts,  subject  to  her  life  tenancy  as  dowTess,  and 
upon  her  death  the  title  and  right  of  possession  vest  in  the  pur- 
chaser. The  sale  of  land  under  a  mortgage,  jointly  executed 
by  the  deceased  husband  and  his  wife,  she  having  relinquished 
her  dower,  conveys  a  title  to  the  purchaser  free  of  dower;  but 
the  widow  has  her  right  of  dower  in  the  surplus,  if  any,  after 
discharging  the  mortgage. 

The  rights  of  the  widow  and  children  in  the  homestead 
cannot  be  touched  by  general  creditors.  The  validity  of  liens 
against  the  homestead,  including  those  for  purchase  price,  as 
well  as  the  liability  of  the  homestead  for  debts  of  the  deceased 
contracted  prior  to  its  acquisition  have  been  discussed  ante, 


§§485,486]    OP  THE   CONSEQUENCES  ATTENDING  THE  SALE.   433 

§  104;  SO  also  the  liability  of  the  interest  of  the  heirs  or  devisees 
after  the  expiration  of  the  homestead  right  to  sale  for  debts  of 
the  ancestor. 

§  485.  How  Purchasers  are  affected  by  the  Rule  of  Caveat  Emptor. 
—  The  sale  of  real  estate  by  an  executor  or  administrator, 
whether  under  a  power  conferred  upon  him  by  will,  or  by  order  of 
the  probate  court  for  the  payment  of  debts,  is  strictly  governed 
by  the  extent  of  the  power.  What  he  does  in  conformity  with 
the  will,  or  with  the  order  of  the  court,  in  so  far  as  the  same  is 
authorized  by  statute,  is  binding  upon  the  estate,  the  heirs, 
and  devisees;  what  he  does  in  excess  of  such  power  or  order  is 
either  void,  or  can  bind  him  only  personally.  The  principle  of 
caveat  emytor  is,  therefore,  strictly  applicable.  The  adminis- 
trator is  not,  in  general,  bound,  in  selling  the  property  of  an 
estate,  to  make  known  defects  of  title  witliin  his  knowledge. 
Nor  can  the  purchaser  defend  against  an  action  at  law  for  the 
purchase-money,  on  the  ground  of  an  irregularity  in  the  sale, 
nor  if,  in  the  absence  of  fraud  or  warranty  by  the  administrator, 
he  was  dispossessed  by  the  holder  of  a  paramount  title  of  which 
he  had  notice,  actual  or  constructive,  at  the  time  of  sale. 

But  although  the  rule  of  caveat  emjjtor  requu*es  the  purchaser 
to  inform  himself  as  to  all  the  facts  wliich  he  can  ascertain  by 
the  exercise  of  reasonable  diligence,  it  does  not  charge  him  with 
notice  of  that  which  cannot  be  learned  from  an  inspection  of 
the  records.  Secret  defects  are  to  hun  no  defects  at  all.  So 
the  purchaser's  title  has  priority  over  an  unrecorded  deed  from 
the  intestate. 

The  purchaser  is  charged  with  notice  of  the  record  in  the  case, 
but  this  means  only  the  record  of  the  proceedings  for  the  sale. 
The  purchaser  can  rely,  for  instance,  on  the  finding  in  the  order 
that  there  are  unpaid  debts,  though  other  entries  in  the  record 
unconnected  with  the  application  for  sale,  showed  the  debts 
paid.^ 

§  486.  The  Purchaser's  Rights  in  Equity.  —  Caveat  Emptor  is 
the  rule  at  law.  In  equity  the  purchaser  will  be  protected 
against  the  consequences  of  having  been  misled  by  the  fraud  or 
mistake  of  the  executor  or  administrator  in  so  far  as  he  had  a 
right  to  rely  on  his  representations.  Thus,  where  the  executor 
1  McNally  v.  Haynes,  59  Tex.  583. 


434  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  486 

sold  under  a  will  which  gave  him  no  power  to  do  so,  received 
the  purchase-money,  and  with  the  knowledge  and  consent  of 
the  heirs,  who  informed  the  purchaser  that  the  executor  was 
the  proper  person  to  sell,  conveyed  -by  deed,  the  heirs  were  es- 
topped from  disputing  the  purchaser's  title. ^ 

Where  the  administrator  solemnly  admits  of  record,  that  the 
personal  property  is  sufficient  for  the  pajTuent  of  all  of  the  debts 
of  an  estate,  and  officially  consents  to  a  sale  of  the  land  in  a 
partition  suit,  neither  he  nor  the  heirs  will  be  permitted  to 
question  the  validity  of  such  sale;  and  if  the  personalty  prove 
insufficient  to  pay  the  debts,  the  heirs  will  be  liable  for  the  value 
of  the  land,  each  for  his  share. 

But  the  mere  consent  of  the  administrator  to  the  sale  by  the 
heirs,  not  officially  given  under  authority  to  do  so,  cannot  de- 
pri^'e  the  creditors  of  the  right  to  subject  the  land  to  the  payment 
of  their  claims. 

It  is  well  recognized  by  authorities,  and  obvious  on  principle, 
that  an  irregular  sale  may  be  confirmed  by  adult  heirs,  who  will 
not  thereafter  be  permitted  to  question  the  purchaser's  title. 
Wliere  the  sale  is  void,  the  purchaser,  upon  surrendering  the 
property  to  the  heirs,  has  an  equity  to  recover  of  them  such  of 
his  expenditures  as  have  benefited  them.  This  includes  the 
value  of  improvements  put  upon  the  land  in  good  faith,  and 
taxes  paid  by  him.  Of  the  purchase  money  he  receives  only 
so  much  as  is  shown  to  have  benefited  the  heirs.  Payments 
of  creditors  of  the  estate,  where  the  personalty  is  inadequate, 
relieve  the  heirs;  but  the  purchaser  cannot  recover  from  the 
heirs  so  much  of  the  purchase-money  as  was  not  used  to  pay 
debts. 

The  situation  may  be  reversed;  the  heirs,  instead  of  the  pur- 
chaser, may  seek  to  set  aside  an  administrator's  sale  of  realty. 

An  administrator's  sale  cannot  be  avoided  by  the  heirs  on 
proof  that  he  procured  the  license  by  fraud  or  misrepresentation, 
unless  the  purchaser  at  the  sale  participated  in  or  had  notice 
of  the  fraud;  and  if  the  pm-chaser,  although  he  acted  in  collusion 
with  the  administrator,  sell  to  an  innocent  third  party,  the 
latter,  buying  for  value  and  in  good  faith,  takes  an  unimpeach- 
able title. 

1  FarrUl  v.  Roberts,  50  N.  Y.  222. 


§  487]       OF  THE   CONSEQUENCES  ATTENDING  THE   SALE.  435 

By  the  sale  under  order  of  the  probate  court,  the  purchaser 
acquires  whatever  title  or  estate  the  deceased  o^Mied  at  the 
time  of  his  death,  and  he  may  enforce  conveyance  thereof  to 
hhnself  by  action  against  the  administrator. 

§  437.  Eiiecutors  and  Administrators  as  Purchasers.  —  The  rule 
that  the  purchase  of  an  executor  or  administrator  at  his  own 
sale  may  be  avoided  at  the  option  of  the  beneficial  owner, 
stated  ante,  §  326,  applies  whether  the  property  purchased  be  re- 
alty or  personalty.  The  doctrine  is  said  to  stand  "upon  our 
great  moral  obligation  to  refrain  from  placing  ourselves  in  re- 
lations which  ordinarily  excite  a  conflict  between  self-interest 
and  integrity."  ^  "However  innocent  the  purchase  may  be  in 
the  given  case,  it  is  poisonous  in  its  consequences.  The  cestui 
que  trust  is  not  bound  to  prove,  nor  is  the  court  bound  to  judge, 
that  the  trustee  has  made  a  bargain  advantageous  to  himself. 
.  .  .  It  is  to  guard  against  this  uncertainty  and  hazard  of  abuse, 
and  to  remove  the  trustee  from  temptation,  that  the  rule  does 
and  will  permit  the  cestui  que  trust  to  come,  at  his  own  option, 
and  without  showing  actual  injury,  and  insist  upon  having  the 
experiment  of  another  sale."  ^ 

The  rule  is  applied  to  meet  the  danger  it  contemplates.  The 
administrator  must  not  become  interested  in  the  property  be- 
tween the  sale  and  its  confirmation.  He  cannot  buy  through  an 
agent  in  any  guise,  nor  can  he  act  as  agent  for  another;  attor- 
neys of  executors  or  administrators  cannot  be  permitted  to  buy 
at  sales  by  their  clients,  nor  a  probate  judge  at  a  sale  ordered 
by  himself. 

The  rule  covers  all  cases  where  the  executor  or  administrator 
controls  the  sale.  It  thus  applies  to  sales  under  foreclosure  of 
mortgages  given  to  the  executor  or  administrator  as  represent- 
ing the  estate,  and  to  judicial  sales  on  judgments  obtained 
against  others  for  the  estate.  But  where  the  sale  is  not  under 
his  control  he  is  free  to  bid.  A  sale  on  foreclosure  of  a  mortgage 
on  realty,  given  by  the  deceased,  is  an  instance.  The  adminis- 
trator is  not  trustee  for  heirs  or  devisees.  He  owes  them  no 
duty.  So  also  an  executor's  purchase  of  the  interest  of  a  legatee, 
or  an  administrator's  of  a  distributee,  does  not  fall  under  the 

1  Michoud  V.  Girod,  4  How.  (U.  S.)  503,  555. 

2  Chancellor  Kent  in  Devone  v.  Fanning,  2  Johns.  Ch.  252,  260. 


43G         THE  L.\W  OF  decedents'  ESTATES.        [§  4SS 

rule.  But  in  these  cases,  while  the  trustee  is  not  interdicted 
from  dealing  with  the  beneficiary,  and  therefore  the  transac- 
tion is  not  voidable  at  the  discretion  of  the  beneficiary,  another 
doctrine,  in  the  nature  of  a  rule  of  evidence,  imposes  on  the 
purchasing  personal  representative,  in  an  action  by  the  benefici- 
ary to  set  aside  the  transaction  for  fraud,  the  burden  of  proving 
his  good  faith  in  the  transaction. 

A  few  courts  have  held  the  purchase  by  the  personal  represen- 
tative at  his  owni  sale  under  the  rule  above  given  absolutely 
void;  while  the  strong  current  of  authorities  holds  such  purchase 
only  voidable  and  that  the  legal  title  passes  to  the  purchaser, 
subject  to  be  divested  by  the  heirs  or  devisees  within  a  reason- 
able time,  and  he  is  liable  to  them  as  a  trustee.  What  is  a  rea- 
sonable time  within  which  the  application  to  set  aside  such  sale 
may  be  made,  depends  upon  the  circumstances  of  each  case. 
Courts  of  equity  will  refuse  relief  in  cases  of  lacJies  or  unrea- 
sonable delay  by  the  heirs,  in  analogy  with  the  Statute  of 
Limitations. 

An  executor  or  administrator,  having  purchased  at  his  own 
sale,  is  treated  in  equity  as  a  trustee  for  the  heirs  or  devisees; 
hence,  if  such  sale  is  set  aside  on  then-  suit,  he  will  be  entitled 
to  account,  being  chargeable  for  rents  and  profits  received 
from  the  property,  or,  if  converted  into  money,  then  for  the 
money,  with  interest,  and  to  be  credited  with  payments  for  the 
purchase,  if  applied  in  the  administration  of  the  estate,  for 
taxes,  necessary  repairs,  and  reasonable  improvements,  also 
with  interest. 

§  488.  Validity  of  the  Sale  in  Collateral  Actions.  —  To  what 
extent  and  in  what  States  the  judgments  of  probate  courts  are 
conclusive,  and  unassailable  except  by  direct  proceeding,  and 
where  they  are  impeachable  collaterally,  has  been  fully  dis- 
cussed in  connection  with  the  subject  of  probate  courts  in  Amer- 
ica. The  question  most  frequently  arises  in  connection  with 
the  sale  of  real  estate  by  order  of  the  probate  court. 

A  few  States,  the  number  steadily  diminishing,  adhere  to 
the  old  rule  that  all  the  essential  facts  must  affirmatively  appear 
on  the  face  of  the  proceedings  to  make  the  sale  valid.  But  under 
the  ruling  of  almost  all  States,  probate  courts,  like  other  courts 
of  record,  are  presumed  to  have  adjudged  every  question  neces- 


§  4S8]      OF  THE  CONSEQUENCES  ATTENDING  THE  SALE.  437 

saiy  to  Justify  the  judgment;  and  their  orders  cannot  be  collater- 
ally reviewed,  save  as  lack  of  jurisdiction  is  concerned. 

Still,  occasional  exceptions,  based  on  the  older  idea,  can  be 
met  with  even  now  in  some  States  that  have  generally  adopted 
the  modern  doctrine;  and  no  irregular  sale  under  order  of  pro- 
bate court  should  be  pronounced  good  without  consulting  the 
rulings  in  the  State  concerned. 


438  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  4S9 


PART  II. 

OF  THE  RELATIVE  LIABILITY   OF  ASSETS  TO 
CREDITORS  AND  LEGATEES. 


CHAPTER  LIII. 

OF  MARSHALLING   ASSETS   FOR  THE   PAYMENT   OF  DEBTS   AND 
LEGACIES. 

§  489.  Order  of  the  Application  of  Funds  Liable  to  the  Payment 
of  Debts.  —  The  debts  of  the  deceased  must  be  paid  in  full  be- 
fore the  directions  of  the  will  can  be  carried  out.  It  is  a  matter 
of  frequent  occurrence  that  the  testator's  estate  is  not  large 
enough,  after  satisfaction  of  all  the  debts  to  meet  all  the  testa- 
tor's dispositions  for  his  beneficiaries.  Some  beneficiaries  must 
lose  in  order  that  the  superior  claims  of  creditors  may  be  satis- 
fied. There  must  be  abatement  somewhere  in  the  legacies  or 
devises.  Wliere  shall  this  abatement  fall?  This  rests  on  the 
question:  where  did  the  testator  intend  it  to  fall?  When  that 
is  clear  by  the  terms  of  the  will,  there  is  no  difficulty.  But 
wills  ordinarily  are  not  drawn  with  the  idea  that  the  assets  will 
be  inadequate  to  satisfy  its  provisions;  and  so  a  system  of  inter- 
pretations has  grown  up  under  the  decisions. 

To  appreciate  the  rulings  discussed  in  this  and  succeeding 
sections,  and  the  reasoning  on  which  they  rest,  certain  principles 
mentioned    heretofore,    must   be    constantly    kept    in   mind: 

1.  Personal  property  is  the  primary  fund  for  payment  of  debts. 

2.  Real  estate  at  common  law  is  liable  only  for  specialties,  and 
not  for  general  debts  of  the  deceased.  3.  Modem  statutes  every- 
where have  made  the  real  estate  of  the  deceased  liable  for  his 
general  debts,  but  that  liability  is  only  secondary,  the  personalty 
under  the  statutory  system  still  remaining  the  primary  fund 
for  the  payment  of  debts.  4.  Under  common  law  the  testator 
could  make  his  estate,  including  realty,  chargeable  for  his  debts 


§  489]      MARSHALLING   ASSETS   FOR  PAYIMENT   OF  DEBTS.  439 

in  any  way  he  chose ;  and  that  is  true,  a  fortiori,  in  later  days. 
With  these  considerations  in  view,  the  courts  in  arriving  at  the 
testator's  presumed  intention,  give  these  general  rules  as  to 
the  liability  of  the  estate  for  debts: 

I.  It  is  a  rule  universally  admitted,  that  the  personal  estate 
is  the  natural  primary  fimd  for  the  payment  of  debts  contracted 
by  the  deceased  himself,  which  will  be  first  applied  until  ex- 
hausted, unless  the  testator  expressly  or  by  implication  direct 
otherwise.  Such  rule  of  course  does  not  affect  the  creditor 
who  has  a  right  against  other  property  of  the  deceased;  e.  g.,  a 
mortgage  on  his  realty.  Such  creditor  can  enforce  his  rights. 
The  way  the  principle  is  enforced  through  subrogation  appears 
later. 

II.  Lands  expressly  or  specially  devised  and  set  apart  for 
the  payment  of  debts  are  resorted  to  primarily,  if  the  testator, 
in  charging  such  lands,  intended  thereby  to  exonerate  the  per- 
sonalty; but  unless  such  shall  be  found  to  be  his  intention,  the 
direction  to  sell  or  mortgage  real  estate  to  pay  debts  amounts 
only  to  an  expression  of  the  testator's  honest  desire  to  have  his 
debts  paid  in  the  manner  pointed  out  by  law,  leaving  the  per- 
sonalty as  the  fund  to  be  first  resorted  to,  and  the  real  estate 
auxiliary  thereto,  in  the  event  that  the  personalty  shall  prove 
insufficient. 

III.  Next  in  the  order  of  liability  for  debts  are  lands  de- 
scended to  the  heir,  whether  acquired  before  or  after  the  making 
of  the  will. 

Here  is  recognition  of  the  rule  that  realty  is  only  liable  after 
personalty  is  exliausted;  while,  on  the  other  hand,  it  is  held  that 
land  of  which  the  testator  made  no  disposition  should  go  to 
creditors,  before  the  dispositions  of  the  testator,  even  as  to 
personalty,  should  be  disappointed. 

IV.  Estate  devised  or  bequeathed,  subject  to  a  charge  for 
debts. 

This  must  be  distinguished  from  II.  In  that  case  the  testator 
e:q3ressly  devotes  the  land  primarily  to  the  payment  of  his 
debts;  as  when  he  directs  it  sold  for  that  purpose.  But  under 
IV.  it  inferentially  appears  that  the  testator  intended  that 
rather  than  have  his  other  gifts,  even  of  personalty,  nullified, 
he  would  have  the  land  sold.    Thus  wliere  the  will  disposing  of 


440  THE   LAW   OF  DECEDENTS'    ESTATES.        [§§  490,  491 

all  the  testator's  estate,  real  and  personal,  was  bad  as  to  the 
realty,  but  good  as  to  the  personalty,  the  heir  of  course  took 
the  realty.  Creditors,  as  was  their  right  and  indeed  their  only 
course,  collected  out  of  the  personalty.  It  was  held  that  the 
testator  intended  the  legatees  to  have  the  personalty  unencum-. 
bered  by  debts;  that  the  testator  had  inferentially  charged  the 
debts  on  his  realty;  and  so  the  legatees  were  entitled  to  recover 
from  the  heirs  what  had  gone  out  of  the  personal  estate  to  pay 
creditors.^ 

V.  Next  come  general  legacies,  which  abate  'pro  rata. 

VI.  Specific  legacies,  and  devises  whether  in  terms  specific 
or  residuary,  which  also  abate  yro  rata. 

The  last  two  propositions  are  discussed  ante,  §  449. 

The  application  of  these  rules  to  special  situations  appears 
in  the  following  sections. 

§  490.  Charge  of  Debts  on  Real  Estate.  —  Prior  to  the  stat- 
utes which  everywhere  subjected  realty  to  ultimate  liability 
for  all  debts,  it  was  obviously  of  great  importance  to  determine 
whether  the  debt  of  a  testator  had  been  charged  upon  his  real 
estate,  since  in  the  absence  of  sufficient  personalty  the  pay- 
ment thereof  could  not  otherwise  be  coerced.  In  the  anxiety 
of  courts  of  equity  to  secure  justice  to  creditors,  they  have  en- 
deavored to  give  effect  to  general  directions  by  a  testator  for 
the  payment  of  all  his  debts,  by  construing  such  a  direction 
into  a  trust  for  their  discharge  out  of  his  real  estate  in  case  of 
deficiency  of  the  personalty.  Very  slight  words  in  the  will 
were  held  to  imply  a  charge  of  debts  upon  lands,  and  it  was 
established  as  a  general  rule,  that  a  direction  by  a  testator  that 
his  debts  shall  be  paid  charges  them  by  implication  on  his  real 
estate,  either  as  against  his  heir  at  law  or  devisee. 

Since  all  land  now  is  subject  to  creditor's  claims,  it  is  no 
longer  necessary  in  aid  of  justice  to  resort  to  such  strained  inter- 
pretations, and  little  remains  of  the  old  rules  on  the  subject 
beyond  the  cardinal  doctrine,  that  the  intention  of  the  testator 
inferable  from  the  words  of  the  will  must  be  carried  into  effect. 

§  491.  Charge  of  Legacies  on  Real  Estate.  —  The  testator  may 
make  legacies,  as  well  as  his  debts,  a  charge  on  realty.  If  the 
language  of  the  will  indicates  that  the  testator  intended  legacies 
^  Hope  V.  Wilkinson,  14  Lea  21,  27. 


§  492]      JIARSHALLING  ASSETS  FOR  PATIIEXT  OF  DEBTS.  441 

to  be  paid,  knowing  that  his  personal  estate  would  be  insufBcient 
for  that  purpose,  or  if  it  appear  that  in  giving  the  legacies  he  had 
the  real  estate  in  mind,  they  will  constitute  a  charge  thereon, 
although  it  be  devised.  The  land  is  accordingly  considered  to 
be  charged  with  legacies,  when  the  devise  is  upon  condition 
that  the  devisee  pay  the  legacies;  or  where  the  duty  to  pay  an 
annuity  is  imposed  upon  the  devisee  in  the  same  sentence  de- 
vising the  land;  or  where  he  is  to  "make  up  the  deficiency." 
In  all  such  cases  the  devised  land  is  liable  to  the  legatees,  and 
may  be  followed  though  the  devise  has  lapsed  or  the  land  has 
descended  to  the  devisees'  heirs,  or  the  devisees  have  aliened 
it  to  others. 

But  the  lands  are  not  charged  by  a  mere  direction  of  the  tes- 
tator to  the  devisee  to  pay  a  legacy;  it  must  appear  from  the  will 
that  it  was  his  intention  to  onerate  the  land,  otherwise  the  di-. 
rection  is  merely  personal,  and  must  be  held  to  charge  the  per- 
son, if  he  accept  the  devise.  The  intention  to  charge  the  land 
may  be  manifested  by  express  words,  or  by  implication  or  fair 
inference  from  the  context;  and  the  extraneous  circumstances 
under  which  the  will  was  wTitten  may  be  considered  in  aid  of 
its  terms.  It  is  held  that  where  the  pajTnent  of  a  legacy  is  made 
a  condition  of  the  devise,  its  acceptance  creates,  in  addition  to 
the  liability  of  the  land  devised,  a  personal  liability  to  the  leg- 
atee, which  may  be  enforced  without  resorting  to  the  land,  the 
lien  still  remaining  as  a  security.  In  some  States  it  is  held,  that 
in  such  case  the  land  cannot  be  pursued  until  the  personal  rem- 
edy is  exhausted;  in  others,  that  he  may  pursue  the  one  or  other 
remedy  first. 

§  492.  EfEect  of  Devise  of  Rents  and  Profits.  —  The  devise  of 
the  rents  and  profits  or  of  the  income  of  land  is  construed  gen- 
erally as  a  de\dse  of  the  land  itself.  But  this  is  merely  a  rule  of 
construction  and  must  jield  where  another  intent  can  be  gath- 
ered from  the  whole  will.  The  gift  of  interest,  or  income,  of 
personalty,  in  like  manner,  as  a  general  rule,  carries  with  it  the 
fund  itself,  and  is  governed  by  analogous  principles. 

It  has  been  a  matter  of  contention  whether  a  direction  or 
power  to  raise  money  out  of  the  rents  and  profits  of  the  testator's 
'ands  authorizes  their  sale  or  mortgage.  The  true  doctrine 
seems  to  turn  upon  the  principle  contained  in  the  rules  of  con- 


442  THE  LAW  OF  DECEDENTS'   ESTATES.         [§  493,  49-4 

stniction,  according  to  which  the  general  intent  of  the  testator, 
discernible  from  the  whole  of  the  will,  must  dominate  the  par- 
ticular provisions  whenever  there  is  an  irreconcilable  incon- 
sistency between  them,  or  an  impossibility  to  give  complete 
effect  to  both. 

§  493.  Exoneration  of  the  Personalty.  —  It  has  already  been 
stated,  that  a  general  charge  of  debts  upon  the  real  estate  is 
not,  without  more,  sufficient  to  exonerate  the  personalty.  No 
express  words  are  necessary  for  that  purpose.  "It  may  now 
be  taken  as  the  established  law,  that  the  personal  fund  will  be 
exempted  if  the  intention  of  the  testator  in  its  favor  can  be 
collected  from  a  sound  interpretation  put  upon  the  whole  will."  ^ 

A  general  charge  of  the  debts  upon  the  real  estate  amounts 
to  an  exoneration  of  the  personal  estate  specifically  bequeathed, 
until  the  land  so  charged  is  exhausted;  but  a  general  legacy  will 
not  be  protected. 

§  494.  Exoneration  of  Mortgaged  Property.  —  Wlien  the  tes- 
tator devises  real  estate  which  is  subject  to  a  mortgage  given 
by  the  testator,  the  mortgagee  has  his  uncontrolled  choice  to 
collect  his  claim  either  as  a  debt  owing  by  the  testator  from  his 
general  assets,  or  else  to  enforce  his  mortgage  against  the  land 
of  the  devisee.  But  as  between  the  devisee  and  the  estate  of 
the  deceased,  who  ultimately  pays?  The  testator  may  indicate 
the  fund  out  of  which  the  mortgage  shall  be  paid,  or  devise  the 
land  cum  onere;  otherwise  the  general  estate  is  liable,  for 
the  debt  is  the  personal  debt  of  the  testator.  If  the  mortgage 
creditor  compels  the  devisee  to  pay,  the  latter  comes  in  with 
his  claim  against  the  general  assets.  \^^ien  the  exoneration  of 
the  devisee  requires  abatement  of  legacies,  it  has  been  held  that 
the  devisee  cannot  call  upon  specific  legacies  to  abate,  and  in 
some  States  not  even  general  legacies,  though  in  most  he 
can. 

Up  to  the  point  involving  legacies,  the  mortgagee  can  enforce 
his  claim  against  the  various  funds  of  the  estate  in  the  following 
order:  first,  the  general  personal  estate;  next,  lands  devised  for 
the  express  purpose  of  paying  debts;  then,  lands  descended; 
and,  lastly,  lands  devised  charged  with  debts;  and  if  the  charge 
fell  upon  the  last  of  these  classes,  the  devisee  himself,  who  calls 
1  Brant's  Will,  40  Mo.  266,  279. 


§  495]     MARSHALLING  ASSETS  FOR  PAl-ilENT  OF  DEBTS.  443 

for  the  exoneration,  would  be  liable  to  contribute  ratably  with 
the  other  devisees. 

If  the  mortgagee  collects  his  debt  from  the  general  assets, 
the  proper  primary  fund  for  payment  of  the  debt  has  been  used, 
and  there  can  be  no  equity  against  the  devisee,  unless  legacies 
have  been  compelled  to  abate.  When  a  specific  legatee  is  de- 
prived of  his  legacy  by  the  pajTnent  of  a  debt  secured  b}'  mort- 
gage, he  will  be  subrogated  to  the  right  of  the  creditor  against 
the  land,  to  the  extent  of  his  legacy,  or  to  the  value  of  the  per- 
sonal estate,  primarily  liable,  not  so  appropriated. 

The  question  whether  the  devised  property  or  the  testator's 
estate  is  primarily  liable  for  the  mortgage  debt  as  between 
themselves,  can  only  arise  if  the  testator  was  personally  liable 
on  the  mortgage.  If  therefore  B  de\'ises  to  C  property'  wliich 
B  bought  of  A  subject  to  a  mortgage  given  by  A,  for  which 
B  is  not  personally  liable,  the  de\'isee,  C,  necessarily  takes  the 
property"  cum  onere. 

The  right  of  a  legatee  to  whom  any  specific  chattel  has  been 
bequeathed  to  have  it  exonerated  from  encumbrance  thereon 
is  the  same  as  that  of  a  dex-isee.  Personal  property^  pa-^Tied  by 
the  testator  is  to  be  redeemed  by  the  executor  in  favor  of  the 
specific  legatee. 

§  495.  Statutory  Modifications  of  the  Rule  as  to  Devise  of  En- 
cumbered Property.  —  The  presumption  that  in  devising  mort- 
gaged property  the  testator  intended  to  exonerate  it,  giving  the 
de\asee  the  unencumbered  fee,  unless  something  in  the  will 
indicated  the  contrary,  is  reversed  in  England  by  the  statute 
Imown  as  Locke  King's  Act,^  under  which  the  presumption  is 
that  the  de\dsee  takes  cum  onere,  unless  the  wdll  discloses  the 
contrary.    A  New  York  statute  is  to  the  same  effect. 

In  some  of  the  States  it  is  provided  that  the  encumbrance 
of  any  land  de\'ised  shall  not  be  deemed  a  revocation  of  the 
de\'ise,  but  the  devisee  shall  take  the  same  subject  to  the  en- 
cumbrance. These  words,  on  first  impression,  might  seem  to 
imply  that  the  onus  of  discharging  the  encumbrance  is  thereby 
thrown  upon  the  land.  No  adjudications  of  the  point  have 
come  to  the  knowledge  of  the  editors;  but  a  number  of  consid- 
erations suggest  that  the  legislature  meant  simply  to  abrogate 
1  17  and  18  Vict.  c.  113. 


444  THE   LAW  OF  DECEDEXTS'   ESTATES.  '     [§§  496,  497 

the  rule  existing  at  common  law,  whereby  an  encumbrance  of 
lands  previously  devised  worked  a  revocation  of  such  devise.^ 

§  496.  Marshalling  Assets  in  the  Course  of  Administration.  — 
Under  the  old  English  system  the  adjustment  of  the  conflicting 
rights  between  creditors,  legatees  of  different  kinds,  devisees, 
and  heirs  could  only  be  accomplished  in  a  court  of  equity.  We 
have  seen  that  the  ecclesiastical  courts,  the  predecessors  of 
our  probate  courts,  were  inadequate  to  the  task;  and,  indeed, 
had  no  jurisdiction. 

The  powers  of  our  modem  probate  courts  to  administer  the 
law  under  these  equitable  principles  may  be  doubted  as  to 
one  or  the  other  mode  of  exercising  such  authority  in  some  of 
the  States  which  have  not  wholly  cut  loose  from  the  old  sj-stem. 
However,  since  the  distribution  of  assets  is  now  everj^where 
under  control  of  probate  courts,  and  that  distribution  can  only 
be  accomplished  by  application  of  these  principles,  the  power 
of  probate  courts  to  act  on  equitable  principles  in  distribution 
is  generally  recognized. 

§  497.  Marshalling  Assets  among  Creditors,  Legatees,  Devisees, 
Heirs,  and  Distributees.  —  The  situations  calling  for  application 
of  the  equitable  principles  mentioned  in  this  chapter  present 
endless  variety.  In  general  the  doctrine  of  marshalling  applies 
where  one  having  a  paramount  claim  enforces  it  against  a  fund 
only  secondarily  liable  therefor,  or  liable  only  pro  rata,  where- 
upon the  injured  beneficiary  may  require  adjustment,  in  one 
of  the  equitable  methods,  from  the  party  primarily  liable  to  the 
paramount  obligation,  or  pro  rata  liable,  as  the  case  may  be.^ 

1  Statutes  in  other  States,  slightly  changing  the  rule,  and  other  statutes 
bearing  on  the  subject  of  contribution  are  discussed  in  Woemer  on  Ad- 
ministration, §  497. 

2  For  details,  see  Woemer,  §  496. 


498]  COMMON  L.\\V  AND  STATUTORY  SYSTEM.  445 


TITLE   EIGHT. 

OF   ACCOUNTING   AND   SETTLEMENTS   BY 
EXECUTORS   AND   ADMINISTRATORS. 


CHAPTER  LIV. 

OF  THE  COMMON  LAW  AND  STATUTORY  SYSTEM   OF  ACCOUNTING. 

§  498.  Accounting  under  the  Older  System  of  Administration.  — 
Under  the  system  existing  prior  to  the  modern  American  theory 
of  probate  courts,  the  ecclesiastical  tribunals  could  compel 
the  executors  or  administrators  not  only  to  file  an  inventory, 
but  also  to  render  an  account  at  the  instance  of  interested  par- 
ties. But  no  witnesses  could  be  heard  to  falsify  the  inventory 
or  account,  and  the  court  had  no  power  to  order  payment  of  a 
debt,  or  entertain  a  suit  by  legatee  or  distributee.  The  only 
practical  result  seems  to  have  been  to  give  interested  parties 
an  insight  into  the  estate;  and  this  could  be  better  attained  in 
equity. 

At  common  law,  as  we  have  seen,  each  creditor's  suit  re- 
quired an  independent  full  accounting  by  the  executor  or  ad- 
ministrator for  all  assets,  involving  trouble,  expenditure,  and 
possible  inconsistency  in  the  decisions. 

The  most  usual  course  to  compel  executors  and  administra- 
tors to  account,  under  the  English  law,  is  by  bill  in  equity.  They 
are  regarded,  in  most  respects,  as  trustees,  and  as  such  are  held 
liable  by  courts  of  equity  to  set  forth  an  account  of  their  assets 
and  of  the  application  of  them,  notwithstanding  an  account 
before  taken  and  distribution  ordered  in  the  spiritual  court. 
Before  the  statute  on  this  subject,  it  was  usual  for  one  or  more 
creditors  to  file  a  bill,  commonly  called  a  creditors'  bill,  in  be- 
half of  themselves  and  all  other  creditors  who  should  come  in 
under  the  decree,  for  an  account  of  the  assets  and  a  due  settle- 


446  THE  LAW  OF  DECEDENTS'   ESTATES.        [§§  499,  500 

ment  of  the  estate.  Thus  the  estate  could  be  settled,  and  the 
executor  or  administrator  exonerated.  The  assumption  of  such 
jurisdiction  by  equity  is  not  generally  adopted  in  this  country. 
Under  the  modern  statutory  system,  providing  as  far  as  may  be 
for  settlement  of  all  such  matters  in  probate  court,  some  special 
equitable  ground  should  be  shown  to  exist,  involving  the  impo- 
tence of  the  probate  court  to  meet  the  situation  to  give  jiu-is- 
diction  to  a  court  of  chancery. 

§  499.  Statutes  requiring  Periodical  Accounting.  —  In  the 
American  States  the  general  course  of  legislation  has  been  to 
compel  accounting  in  the  probate  courts  as  a  matter  of  statu- 
tory requirement,  without  waiting  for  creditors  or  distributees 
to  apply  for  an  order  to  that  effect.  To  this  end,  executors  and 
administrators  are  required  to  present  an  account  of  their  ad- 
ministration at  a  given  time,  generally  upon  expiration  of  one 
year  after  appointment,  or  at  the  term  commencing  next  after 
the  expiration  of  such  year.  The  presentation  of  these  accounts 
is  ever}'T\'here  enforced  by  penalties  against  the  executor  or 
administrator  for  default,  which  vary  in  the  different  States.^ 

The  liability  to  account  is  not,  however,  limited  to  the  peri- 
odical returns  required  by  the  statutes,  but  the  probate  court 
may,  sua  sponte,  or  on  motion  of  any  person  interested  in  the 
estate,  require  such  accounting  at  any  time. 

§  500.  Rendering  the  Account  and  Passing  upon  it.  —  Upon 
the  rendering  of  the  account  by  the  executor  or  administrator, 
thus  enforced  in  nearly  all  the  States,  it  is  open  to  objections 
by  parties  interested  therein,  who  may  allege  and  show  that  the 
accountant  has  not  charged  himself  with  all  the  assets  belonging 
to  the  estate,  and  dispute  the  truth  or  validity  of  payments  for 
which  he  takes  credit.  It  is  the  province  of  the  probate  court 
to  pass  upon  the  account,  determining  judicially  what  assets 
the  executor  or  administrator  is  chargeable  with,  and  to  what 
credits  he  is  entitled ;  and  it  results  from  this  authority  that  the 
decision  of  any  question  upon  which  there  was  an  issue  between 
the  parties  becomes  an  adjudication  thereof,  which  cannot  be 
impeached  except  in  a  direct  proceeding  by  appeal  or  for  fraud. 
Such  finality  can  only  attach  to  a  settlement  of  the  account, 
which  is  the  judgment  of  the  court,  judicially  determining  — 
^  See  Woerner  on  Administration,  §  501. 


§  501]  co:m]mon  l.^w  and  statutory  system.  447 

settling  —  the  questions  involved.  The  mere  rendering  of  the 
account,  even  though  followed  by  ex  parte  judicial  approval, 
which  falls  short  of  a  judgment,  cannot  have  that  efiect, 

§  501.  Exclusive  and  Concurrent  Jurisdiction  over  Administra- 
tion Accounts.  —  A  distinction  between  annual  or  other  period- 
ical accountings  and  final  settlements  is  very  important.  Final 
settlements  are  everywhere  made  on  notice  to  all  parties  in- 
terested; while  the  States  vary  much  as  to  the  notification  for 
partial  settlements.  In  many,  if  not  most,  States,  there  is  no 
provision  for  notification  as  to  these  partial  settlements.  But 
no  settlement  should  be  binding  on  a  party  not  notified  or 
appearing.  For  it  is  apparent  that  parties  who  were  present, 
or  had  actual  or  legal  notice  to  be  present,  at  the  settlement  of 
the  administration  account,  and  made  no  objection  thereto,  or 
whose  objections  were  heard  and  adjudicated  by  the  court 
having  jurisdiction,  ought  not  again  to  be  heard  to  object; 
while  it  would  be  unjust  and  unreasonable  to  conclude  a  party 
interested  who  was  not  present,  and  had  no  notice  to  be  present 
at  the  settlement,  and  therefore  had  no  opportunity  to  be 
heard. 

The  legal  effect  of  the  settlements  is  also  influenced  to  some 
extent  by  the  nature  of  the  jurisdiction  conferred  upon  probate 
courts  in  different  States.  They  have  exclusive  original  juris- 
diction over  the  settlement  of  administration  accounts  in  one 
list  of  States.  In  another  their  jurisdiction  is  held  to  be  con- 
current with  that  of  chancery  courts.^ 

However,  in  the  first  list  of  States  it  must  be  remembered 
that  courts  of  equity  will  afford  relief  in  all  cases  where  the 
powers  of  probate  courts  are  inadequate  to  accomplish  justice, 
being  regarded,  in  this  respect,  like  ordinary  courts  of  law,  and 
that  hence  accounting  by  executors  and  administrators  may  be 
enforced  by  courts  of  equity,  although  the  original  jurisdiction 
be  vested  exclusively  in  probate  courts.  And,  on  the  other  hand, 
a  court  of  equity  will  not  arrest  proceedings  commenced  in  a 
court  of  probate,  although  their  jurisdiction  be  concurrent, 
unless  some  fact  is  shown  which  renders  the  court  of  probate, 
inadequate  to  a  full  settlement.  It  is  obvious  that  the  con- 
clusiveness of  the  settlements  in  probate  courts  is  largely  influ- 
'  See  Woemer  on  Administration,  §  503. 


448  THE  LAW  OF  DECEDENTS'   ESTATES.        [§§  502,  503 

enced  by  this  difference  in  the  power  of  courts  over  executors 
and  administrators. 

§  502.  Conclusiveness  of  Partial  Settlements,  —  Where  the 
proper  parties  are  before  the  court  having  exclusive  jurisdiction, 
pursuant  to  notice  given  in  accordance  with  the  statute,  and 
on  a  partial  settlement  contest  the  validity  thereof,  a  judgment 
rendered  thereon  is  as  conclusive  as  if  rendered  on  final  settle- 
ment, and  is  a  bar,  as  to  the  matters  determined  by  such  judg- 
ment, to  all  inquiry  at  the  final  settlement.  Under  the  statutes 
of  a  few  States  partial  settlements  not  appealed  from  are  con- 
clusive. But  most  States  do  not  provide  for  notice  of  these 
partial  settlements;  and  generally,  the  effect  of  periodical  or 
partial  settlement  is  that  of  prima  facie  validity;  they  are  liable 
to  be  rebutted,  falsified,  or  surcharged,  and  mistakes  may  be 
corrected  and  omissions  supphed  at  any  subsequent  periodical 
or  final  accounting. 

§  503.  Nature  of  Final  Settlements.  —  Final  settlements  of 
the  administration,  when  made  by  the  executor  or  administrator 
in  pursuance  of  statutory  requirement,  after  legal  notice  to  all 
parties  interested  in  the  estate,  are  conclusive  as  to  all  matters 
therein  directly  adjudicated.  Where  the  notice  has  been  given 
as  required  by  the  statute,  the  judgment  will  be  conclusive, 
although  rendered  in  the  absence  of  all  parties  but  the 
administrator. 

The  conclusive  character  of  such  settlements  is  the  necessary 
result  of  the  judicial  nature  of  the  proceeding.  Res  judicata  pro 
veritate  accipitur:  hence  it  would  be  unreasonable  and  unlawful 
to  allow  that  to  be  again  questioned  which  a  court  of  competent 
jurisdiction  has  once  decided. 

Parties  sui  juris  who  appear  at  the  hearing  waive  any  defect 
in  the  notice,  and  are  bound. 

If,  however,  the  parties  interested  in  the  estate  have  not 
been  notified  in  the  manner  required  by  statute,  nor  appeared 
to  the  settlement,  they  are  obviously  not  bound  by  it:  as  to 
them  the  determination  of  the  court  constitutes  no  judgment. 
The  form  of  notification  prescribed  by  the  statute  for  the  case 
must  be  strictly  observed  to  make  the  settlement  binding  on 
such  as  do  not  voluntarily  appear. 

So  where  infant  distributees  are  entitled  to  be  represented, 


§§  504-506]       COMMON  LAW  AND   STATUTORY  SYSTEM.  449 

and  no  legally  qualified  guardian  appears  for  them  at  a  final 
settlement,  they  are  not  bound  by  such  a  settlement  unless  a 
guardian  ad  litem  be  appointed  for  them.  But  the  fact  that  a 
probate  decree  is  voidable  as  to  an  infant  does  not  entitle  any 
other  party  to  invoke  such  infancy  to  protect  them  against  the 
effect  of  the  decree;  nor  can  the  executor  or  administrator  be 
heard  to  assail  the  validity  of  a  final  settlement  on  the  ground 
that  due  notice  had  not  been  given,  nor  that  it  was  made  before 
the  time  fixed  by  statute. 

§  504.  Conclusiveness  of  Final  Settlements.  —  It  seems  a  self- 
evident  proposition,  that  the  judgment  or  decree  of  the  probate 
court  on  the  final  settlement  by  an  executor  or  administrator 
is  conclusive  only  upon  the  matters  therein  embraced:  that 
which  has  not  been  tried  cannot  be  said  to  be  adjudicated. 
Nor  is  such  decree  or  judgment  conclusive  of  matters  collater- 
ally recited,  but  not  directly  adjudicated.  It  is  important, 
therefore,  that  the  executor  or  administrator  should,  for  his 
own  protection,  include  in  his  account  every  item  which  con- 
stitutes an  element  in  the  settlement.  Where  partial  settlements 
are  held  conclusive,  they  too  of  course  cannot  bind  as  to  matters 
not  adjudicated  in  the  account. 

§  505.  Setting  aside  Final  Settlements  in  the  Probate  Court.  — 
There  has  been  occasion  heretofore  to  remark  that  judgments 
of  probate  courts,  within  the  scope  of  their  authority,  are  as 
conclusive  as  those  of  courts  of  general  jurisdiction;  hence  they 
cannot,  after  the  term  at  which  they  were  rendered,  be  opened, 
revised,  or  amended  in  any  particular  without  statutory  author- 
ity, except  in  equity  for  fraud,  or  by  appeal. 

Judgments  on  final  settlements  fall  under  the  rule.  But  in  a 
number  of  States  the  statutes  confer  upon  probate  courts  the 
power,  under  the  circumstances  and  in  the  manner  therein 
pointed  out,  to  reopen  and  review  their  judgments  on  final 
settlements.  In  others,  the  equity  powers  possessed  by  probate 
courts  are  held  to  authorize  them  to  set  aside  or  reopen  their 
decrees  on  final  settlement,  for  the  purpose  of  correcting  mis- 
takes or  relieving  against  fraud. 

§  506.  Setting  aside  Final  Settlements  in  Chancery.  —  In 
dealing  with  the  judgments  and  decrees  of  probate  courts  upon 
the  final  settlements  of  executors  and  administrators  precisely 


450  THE   LAW   OF   DECEDENTS'    ESTATES.  [§  506 

as  with  the  judgments  of  other  courts,  the  party  seeking  reUef 
in  equity  must  show  himself  to  be  free  from  fraud  or  neghgence. 
If  the  question  brought  before  the  court  of  equity  by  bill  to 
open  and  correct  a  final  settlement  passed  on  by  the  probate 
court  was  there  presented  and  adjudicated,  either  directly  or  by 
necessary  implication,  and  the  party  complaining  had  an  oppor- 
tunity to  be  heard,  and  to  have  the  error  corrected  by  appeal, 
the  failure  to  do  so  constitutes  such  laches  as  will  prevent  redress 
in  equity. 


§  507]  OF  THE   DEBIT   SIDE   OF  THE   ACCOUNT.  451 


CHAPTER  LV. 

OF  THE   DEBIT   SIDE   OF  THE   ACCOUNT. 

§  507.  What  the  Account  must  show.  —  A  proper  statement  of 
the  account  on  its  debit  side  involves  a  distinction  —  1.  between 
the  personal  property  as  inventoried,  charging  it  at  its  ap- 
praised value,  or  according  to  the  face  or  inventoried  amount;  2. 
the  gain,  if  any,  by  the  sale  of  the  inventoried  property  above  its 
appraised  value;  3.  the  gain,  if  any,  by  the  conversion  or  sale 
of  bonds,  stocks,  mortgages,  etc.,  above  the  inventoried  amount 
thereof;  4.  any  property  which  may  have  been  discovered  as 
belonging  to  the  estate,  or  received  after  the  making  of  the 
inventory,  or  which  may  be  scheduled  in  a  supplementary 
inventory;  5.  any  interest  collected  on  choses  in  action  which 
interest  is  not  contained  in  the  inventory;  6.  any  interest  re- 
ceived or  profits  realized  upon  loans  or  investments  made  by 
the  administrator;  7.  any  interest  which  may  be  due  from  the 
administrator  himself;  8.  the  income,  if  any,  from  the  rent  of 
real  estate;  9.  the  proceeds  of  the  sale  of  the  real  estate;  10. 
any  accretion  to  the  estate  from  any  source  whatever.  And 
each  individual  transaction  should  be  accurately  noted. 

The  credit  side  should  distinguish,  —  1.  between  the  ex- 
penses of  probate  and  of  administration;  2.  the  allowance  to  the 
widow  or  minor  children  as  fixed  by  statute  or  directed  by  the 
court,  referring  to  the  order  of  court,  if  any;  3.  the  loss,  if  any, 
arising  out  of  the  sale  of  the  inventoried  property  below  its 
appraised  value;  4.  the  loss,  if  any,  arising  by  the  conversion 
or  sale  of  bonds,  stocks,  mbrtgages,  etc.,  below  their  inventoried 
amount;  5.  the  loss,  if  any,  by  reason  of  uncollectible  debts, 
compromises  with  debtors,  diminution  of  debts  due  the  estate 
by  set-offs  proved,  etc.;  G.  debts  paid  according  to  their  pri- 
ority; 7.  interest  which  may  be  allowable  for  advances;  8. 
compensation  of  the  executor  or  administrator. 

In  addition  to  this,  the  account  should  set  forth  the  exact 


452  THE  LAW   OF  DECEDENTS'   ESTATES.       [§§  50S,  509 

condition  of  the  balance  remaining,  showing  to  what  extent  the 
assets  consist  of  ready  money,  and  the  degree  of  availability 
of  such  as  do  not;  and  also  a  full  schedule  of  demands  proved 
or  allowed  against  the  estate,  showing  their  rank  and  the  rate 
of  interest  they  bear,  as  well  as  of  all  demands  of  which  the 
administrator  has  been  notified,  and  which  have  not  yet  been 
proved  or  allowed,  or  which  may  be  pending  on  appeal  or  suit 
in  court. 

§  508.  Inventoried  Assets  to  be  charged  in  the  Account.  —  The 
inventory  is  the  foundation  of  the  account,  and  should  consti- 
tute the  first  item  of  charge  against  the  executor  or  adminis- 
trator. If  any  of  the  property  has  been  sold  or  converted  into 
money  at  the  exact  price  or  amount  stated  to  be  its  value  in 
the  inventory,  it  need  not  again  figure  in  the  account,  because 
the  executor  is  already  charged  therewith  in  the  item  represent- 
ing the  inventory;  but  for  any  excess  obtained  above  the  amount 
at  which  the  property  is  inventoried,  he  must  charge  himself. 
And  so  he  must  charge  himself  with  any  property  or  money 
coming  to  him  in  his  capacity  as  executor  or  administrator,  if 
the  same  has  not  been  inventoried. 

§  509.  What  Interest  Administrators  are  Chargeable  with.  — 
The  administrator  or  executor  is  not  merely  chargeable  with 
interest  called  for  by  his  inventory  items  {e.  g.,  an  interest-bear- 
ing note) ;  but  is  also  expected  to  invest  funds  in  his  hands,  and 
to  account  for  the  interest.  If  he  negligently  permits  funds  of 
the  estate  to  lie  idle,  instead  of  applying  them  to  the  payment 
of  debts  or  other  liabilities  of  the  estate,  or,  where  that  cannot 
be  done,  investing  them  safely  and  so  as  to  yield  interest  for 
the  estate,  he  is  liable  to  be  charged  with  interest  at  the  usual 
legal  rate,  or  at  such  rate  as  he  might  by  reasonable  skill  and 
diligence  have  obtained,  commencing  from  the  time  when  the 
payment  ought  to  have  been  made.  Hence  he  is  not  liable  if 
he  is  bound  to  retain  the  funds  to  meet  payments  demandable 
at  a  time  which  cannot  be  ascertained  beforehand. 

Where  an  executor  or  administrator  pays  an  unauthorized 
demand  against  the  estate,  or  a  legacy  or  distributive  share 
under  circumstances  leading  to  a  rejection  of  such  pa^Tnent,  he 
is  accountable  for  simple  interest  thereon.  So  upon  any  funds 
which  he  has  misapplied,  or  lost  by  an  unauthorized  investment. 


§§  510,  511]       OF  THE  DEBIT  SIDE   OF  THE  ACCOUNT.  453 

But  where  the  administrator  or  executor  is  guilty  of  a  dehb- 
erate  breach  of  duty  the  rule  is  more  stringent.  If  he  mingle 
the  funds  of  the  estate  with  his  own,  whether  he  has  used  them 
or  not,  and  a  fortiori  if  he  has  employed  them  in  his  own  busi- 
ness, or  for  his  own  purposes,  he  may  be  chargeable  with  inter- 
est thereon  at  the  highest  legal  rate  compounded  for  the  whole  of 
the  time  during  which  they  were  thus  used  or  mingled.  This 
compounding  of  interest  is  in  some  States  viewed  as  a  penalty; 
in  others  it  is  said  to  be  adopted  "for  the  purpose  of  attaining 
the  actual  or  presumed  gains,  and  to  make  certain  that  nothing 
of  profit  or  advantage  remains  to  the  trustee."  ^  Under  the 
latter  view  the  offending  executor  or  administrator  could  per- 
haps be  permitted  to  prove  his  actual  profits  as  less  than  those 
the  application  of  the  rule  would  impose. 

§  610.  Debts  of  Executor  or  Administrator  to  be  charged.  —  The 
executor  or  administrator  must  charge  himself  with  any  debt 
he  owes  the  deceased.  In  some  States  he  is  conclusively  liable; 
in  others  he  can  show  his  own  insolvency  as  he  can  that  of  any 
other  debtor  of  the  estate.    The  subject  is  discussed  miU,  §  299. 

The  executor  or  administrator  is  not  bound  to  charge  himself 
with  a  debt  for  which  he  is  only  contingently  liable,  nor  at 
common  law  with  a  debt  owing,  not  to  the  deceased,  but  to  his 
former  representative. 

That  an  executor  or  administrator  is  entitled  to  show  that  a 
claim  of  the  testator  or  intestate  against  him  is  unjust,  or  has 
been  paid  or  discharged,  seems  self-evident,  and  has  been  held 
in  several  cases.  So,  also,  that  the  Statute  of  Limitation  may 
be  invoked  by  him,  but  does  not  run  in  his  favor  during  his 
term  of  office. 

§  511.  Rents  and  Proceeds  of  Real  Estate  Chargeable  to  the  Ex- 
ecutor or  Administrator.  —  It  may  be  laid  down  as  a  universal 
rule,  that  whenever  an  executor  or  administrator  comes  into 
the  possession  of  real  estate  by  virtue  of  his  office,  whether  by 
force  of  statute,  by  order  of  the  court,  or  under  the  terms  of  a 
will,  he  must  charge  himself  with  all  rents,  profits,  and  proceeds 
of  sale  arising  therefrom.  But  if  he  collects  rents  or  receives 
proceeds  of  sale,  not  in  the  exercise  of  his  official  functions,  yet 
under  color  of  his  office,  —  that  is,  if  he  assumes  control  of  the 
1  Cruce  V.  Cruce,  81  Mo.  676,  686. 


454  THE  LAW  OF  decedents'  estates.  [§511 

real  estate  as  executor  or  administrator  when  not  authorized 
by  statute,  order  of  court,  or  direction  in  the  will,  —  he  is  clearly 
liable  to  those  whose  rights  he  has  usurped.  It  is  not  always 
easy  to  determine  whether,  in  such  case,  he  is  liable  in  his  official 
capacity,  so  that  the  rents,  profits,  or  proceeds  of  the  real  estate 
constitute  an  element  of  his  administration  account,  or  to  the 
heirs  or  devisees  directly;  in  which  case  the  remedy  of  the  latter 
would  not  be  in  the  probate  court,  nor  the  transaction  be 
brought  into  the  official  account. 

Clearly  creditors  of  the  estate  cannot  hold  rents  wTongfully 
collected  by  the  administrator  as  assets  of  the  estate  to  the  det- 
riment of  heirs;  nor  does  it  lie  in  the  mouth  of  the  administrator 
when  sued  personally  by  the  heirs  to  claim  that  he  is  liable  to 
account  in  probate  court.  Nor  when  the  heirs  elect  to  hold  him 
in  his  representative  capacity  with  consent  of  all  parties  inter- 
ested, should  the  administrator  be  allowed  to  defend  on  the 
ground  that  the  liability  is  personal.  But  when  the  heirs  seek 
to  hold  the  administrator  in  his  representative  capacity  to  the 
detriment  of  others  interested  in  the  estate,  or  to  hold  the  bond 
of  the  administrator,  it  becomes  necessary  to  decide  whether' 
the  administrator  is  liable  in  his  representative  capacity  for  rents 
collected  without  authority.  On  principle,  it  would  seem  to 
follow  from  the  administrator's  liability  to  the  heirs  or  devisees 
directly,  as  a  wrong-doer  or  trespasser,  or  as  their  agent  or 
trustee,  dehors  his  official  status,  that  he  is  not  liable  in  his 
official  capacity,  and  therefore  not  chargeable  in  his  administra- 
tion account  with  the  profits,  rents,  or  proceeds  of  sale  of  real 
estate;  and  it  is  accordingly  held  in  many  cases  that  the  pro- 
bate court  has  no  jurisdiction  to  try  the  liability  of  the  executor 
or  administrator  in  respect  of  real  estate  not  legally  in  his  charge, 
and  that  the  sureties  of  the  administrator  are  not  bound  for  the 
funds  so  collected.  But  the  contrary  result  is  reached  in  several 
States,  holding  that  the  heirs  have  the  right  to  proceed  against 
the  executor  in  his  official  capacity.  The  conclusion  in  some 
cases  rests  on  statute. 


§§  512,  513]         OF  THE   CREDIT  SIDE   OF  THE  ACCOUNT.  455 


CHAPTER  LVL 

OF  THE   CREDIT   SIDE   OF  THE  ACCOUNT. 

§  512.  What  the  Accountant  may  take  Credit  for.  —  Expenses 
of  administration  are  necessarily  entitled  to  pajTnent  before  the 
debts  of  the  deceased,  because  they  are  incurred  for  the  very 
purpose  of  securing  the  payment  of  the  debts;  hence  the  ad- 
ministrator is  entitled  to  credit,  whether  the  estate  is  sufficient 
to  pay  all  debts  or  not,  for  all  outlays  to  pay  funeral  expenses, 
taxes  assessed  against  property  in  his  charge,  expenses  in  recov- 
ering the  estate,  costs  accrued  in  defending  the  estate  against 
the  claims  made  thereto  by  others,  or  expenditures  in  preserving 
the  estate. 

Unless  the  statute  in  terms  so  provides,  an  administrator  or 
executor  will  not  be  entitled  to  charge  the  estate  with  money 
which  he  paid  a  surety  corporation  or  trust  company  for  becom- 
ing surety  on  his  bond. 

There  is  some  diversity  in  the  allowance  of  some  of  the  ex- 
penses connected  with  the  administration,  arising  partly  out 
of  the  different  methods  of  making  compensation  to  the  execu- 
tor or  administrator.  Generally  travelling  expenses,  office  rent, 
and  clerk  hire,  when  necessary  for  proper  administration,  are 
allowed;  and  also  the  compensation  of  an  agent  for  the  perform- 
ance of  services  requiring  appliances  or  a  degree  of  skill  not 
within  command  of  ordinary  persons. 

§  513.  What  Counsel  Fees  will  be  allowed.  —  Reasonable  fees 
for  legal  services,  paid  in  good  faith,  are  proper  items  of  credit 
in  the  administration  account,  and  will  be  allowed  for  legal 
assistance  in  resisting  claims  against  the  estate  which  the  ad- 
ministrator does  not  know  to  be  just  and  lawful,  or  in  assisting 
him  in  discharging  his  official  duties,  such  as  settling  the  estate 
in  equity  when  necessary,  collecting  the  assets  if  a  suit  be 
necessary,  preparing  the  account,  or  defending  the  settlement. 

The  rule  is,  that  the  administrator  can  be  allowed  credit  only 


456  THE   LAW   OF  DECEDENTS'   ESTATES.        [§§  514,  515 

for  counsel  fees  which  he  has  actually  paid,  and  no  more  than 
is  a  reasonable  compensation  for  the  services  rendered  to  the 
estate,  no  matter  what  the  administrator  has  actually  paid 
or  contracted  to  pay;  and  the  onus  to  prove  the  necessity  and 
value  of  such  services  is  on  the  administrator.  Compensation 
for  legal  ser\'ices  rendered  by  the  executor  or  administrator  in 
person  is  not  usually  allowed,  unless  it  be  extra  compensation 
as  is  provided  for  by  statute  in  some  States.  Hence  he  cannot 
claim  credit  for  legal  services  rendered  to  the  estate  by  a  law 
firm  of  which  he  is  a  member. 

The  administrator's  right  to  credit  for  either  counsel  fees  or 
costs  does  not  depend  upon  the  favorable  issue  of  the  litigation, 
but  only  upon  good  faith  and  prudence  in  prosecuting  or  de- 
fending. 

§  514.  What  Counsel  Fees  will  not  be  allowed.  —  An  admin- 
istrator will  not  be  allowed  credit  for  counsel  fees  when  they 
were  occasioned  by  his  own  fault,  neglect,  or  gross  ignorance. 
This  principle  involves  that  the  administrator  cannot  be  al- 
lowed the  costs  and  counsel  fees  incurred  in  resisting  proper 
charges  against  him,  or  in  defending  against  a  suit  brought 
against  him  to  recover  or  secure  the  trust  fund,  if  the  complain- 
ant was  justifiable  in  bringing  such  suit,  or  for  services  rendered 
in  defence  of  the  personal  interest  of  the  administrator.  It 
is  ob\aous,  too,  that  the  estate  cannot  be  held  liable  for  the  costs 
or  counsel  fees  arising  out  of  litigation  bet^veen  the  beneficiaries 
thereof  among  themselves,  or  in  the  protection  of  the  interests 
of  particular  persons,  for  such  expense  is  properly  chargeable 
to  the  interest  or  persons  specially  benefited. 

It  frequently  happens  that  counsel  fees  are  charged  in  gross 
for  legal  advice  and  ser\'ices  in  a  contest  on  final  settlement,  in 
which  exceptions  taken  are  in  part  sustained  and  in  part  over- 
ruled. It  would  be  unjust  to  deny  the  administrator  credit 
for  fees  paid  in  defence  of  his  account  when  unjustly  assailed; 
and  equally  unjust  to  impose  upon  the  estate  the  cost  of  de- 
fending erroneous  or  improper  charges  by  the  administrator. 
The  administrator  will  be  allowed  such  sum  as  is  applicable 
for  the  successful  defence,  and  is  personally  liable  for  the  rest. 

§  515.  Costs  in  Litigation  Incident  to  Administration.  —  When 
the  executor  or  administrator  sues  on  a  demand  which  accrued 


§  516]  OF  THE  CREDIT  SmE   OF  THE  ACCOUNT.  457 

to  the  deceased,  or  which  originated  with  him  though  since 
matured  (e.  g.,  a  note  given  to  the  deceased,  falHng  due  after 
his  death)  unsuccessful  litigation  results  in  a  judgment  for  costs 
against  the  assets  of  the  estate;  the  administrator  is  not  per- 
sonally liable.  But  when  the  cause  of  action  originated  subse- 
quent to  the  testator's  death  {e.  g.,  a  trespass  on  property  of  the 
deceased  in  the  administrator's  possession),  it  is  held,  unless 
statutes  have  changed  the  rule,  that  the  judgment  for  costs 
against  the  unsuccessful  administrator  should  be  de  bonis 
jjropriis,  and  not  de  bonis  intestatis  (or  testatoris).  This  proposi- 
tion only  deals  with  the  liability  as  between  the  parties  to  the 
litigation. 

But  the  right  of  the  administrator  to  take  credit  in  his  set- 
tlements for  costs  he  has  paid,  whether  with  his  own  means  or 
out  of  the  estate  rests  on  other  considerations.  It  may  be 
stated,  as  a  general  rule  of  law,  and  one  always  applied  in 
equity,  unless  restrained  by  some  statutory  provision,  that 
an  administrator  or  executor,  having  acted  in  good  faith  and 
with  ordinary  prudence,  is  entitled  to  be  credited  in  his  admin- 
istration account  for  all  costs  he  may  have  been  compelled  to 
pay  in  litigation  affecting  the  estate  in  his  charge.  And  his 
right  to  credit  therefor  does  not  depend  upon  the  favorable  issue 
of  the  litigation,  but  only  upon  good  faith  in  prosecuting  or 
defending.  But  if  he  sues  without  reasonable  cause,  or  for 
the  purpose  of  vexing  or  harassing  the  defendant,  he  will  be 
held  personally  liable  for  costs  in  the  probate  accounting. 

Since  executors  and  administrators  usually  give  bond  for 
faithful  administration,  and  to  answer  for  all  damages  or  liabil- 
ities touching  their  official  acts  as  such,  they  are  not  required  to 
give  bonds  for  costs,  or  on  appeal. 

§  516.  The  Executor's  Expenses  in  Litigation  concerning  Estab- 
lishment of  the  Will.  —  Whether  the  executor  is  entitled  to 
credit  for  the  expenses  incurred  in  the  litigation  to  establish  a 
will  depends  upon  circumstances  in  several  directions.  In  so 
far  as  he  simply  performs  a  duty,  the  expenses  fairly  incurred 
by  him  in  a  contest  with  the  heirs  at  law  are  payable  out  of  the 
estate,  whatever  be  the  consequences  to  the  successful  contest- 
ants; but  if  he  voluntarily  assume  the  burden  of  a  contest  which 
properly  belongs  to  the  legatees  or  devisees,  he  must  look  to 


458      "  THE   LAW   OF  decedents'   ESTATES.         [§§  517-519 

them,  and  not  to  the  estate  for  reimbursement.  So  it  lias  been 
held,  that  it  is  not  the  duty  of  an  administrator  to  contest  the 
probate  of  a  will,  and  that  counsel  fees  paid  by  him  in  such  con- 
test cannot  be  charged  against  the  estate;  nor,  of  course,  are 
such  expenses  incurred  by  third  parties  chargeable  to  the  estate, 
although  under  agreement  to  that  effect  by  one  who  was  sub- 
sequently appointed  administrator.  But  he  is  justified  in  de- 
fending a  probate  once  allowed. 

§  517.  Disbursements  in  Respect  of  the  Real  Estate.  —  The 
executor  or  administrator  is  bound,  whenever  he  is  la^^•fully  in 
charge  of  real  estate  of  the  decedent,  to  exercise  the  same 
diligence  and  prudence  in  its  preservation  and  protection  as  if 
it  were  personal  property  in  his  hands.  Hence  they  should  be 
allowed  credit  for  all  disbursements,  made  prudently  and  in  good 
faith,  for  necessary  repairs,  maintenance,  and  discharge  of  in- 
cumbrances. As  to  taxes,  the  administrator  pa}'s  not  only  those 
which  accrued  while  he  was  in  charge  of  the  estate;  but,  even 
when  not,  he  should  pay  such  taxes  as  were  assessed  against  the 
deceased  and  due  in  his  lifetime,  constituting  a  lien  at  the  time 
of  his  death,  and  a  liability  of  the  estate,  and  this  although 
such  claim  be  not  probated  against  the  estate. 

Wlien  the  realty  is  not  in  charge  of  the  admmistrator,  he  can- 
not obtain  credit  for  disbursements  made  on  account  thereof. 

§  518.  The  Allowance  for  Support  of  Widow  and  Children.  — 
The  statutory  allowance  for  support  of  widow  and  children, 
discussed  {ante,  §§  79-96)  in  some  States  goes  to  them  directly, 
so  that  the  administrator  does  not  inventory  it  and  has  nothing 
to  do  with  it.  ^^^lere  the  property  is  turned  over  to  ^^^dow  or 
children  by  the  administrator,  it  comes  out  of  inventoried  prop- 
erty, and  he,  of  course,  is  entitled  to  credit.  ^Miere  it  is  not 
set  apart  by  the  court  or  by  appraisers,  the  administrator  must 
show  that  the  amount  given  was  reasonable  and  proper. 

§  519.  Advance  Payments  to  Distributees.  —  If  an  administra- 
tor pays  the  right  parties  their  proper  shares,  or  a  part  thereof, 
he  is  protected,  whether  it  is  done  under  sanction  of  court  or 
not,  or  before  or  after  the  passing  of  an  account. 

Advances  properly  so  made  by  the  administrator  or  executor 
should,  on  final  accounting,  be  credited  to  the  personal  repre- 
sentative against  the  shares  of  the  respective  legatees  or  dis- 


§§  520,  521]        OF  THE   CREDIT  SIDE   OF  THE  ACCOUNT.  459 

tributees.  But  advances  to  minors  can  be  allowed  only  when 
made  for  necessaries.  All  other  advances  to  minors  can  be 
charged  neither  against  them,  nor  against  the  estate.  It  is 
very  evident,  however,  that  such  payment  to  legatees  or  dis- 
tributees, without  an  order  of  the  court,  cannot  affect  the  rights 
of  creditors  or  other  distributees  or  legatees.  The  personal  rep- 
resentative assumes  the  risk  that  such  advances  are  not  in 
excess  of  the  proper  share;  and  no  amount  of  good  faith  excuses 
him  as  against  creditors  and  other  interested  parties. 

§  520.  Disbursements  in  Payment  of  Debts.  —  The  allowance 
or  judgment  in  favor  of  a  creditor  is  conclusive  as  to  the  valid- 
ity of  the  debt  (unless  it  can  be  set  aside  as  fraudulently  pro- 
cured by  the  administrator  or  with  his  aid,  as  elsewhere  dis- 
cussed); but  whether  the  executor  or  administrator  is  entitled 
to  credit  for  its  payment  depends  upon  the  further  question  of 
the  sufficiency  of  assets,  and  if  he  has  paid  such  debt  or  allow- 
ance in  advance  of  an  order  to  that  effect,  he  has  done  so  at  the 
risk  of  having  so  much  disallowed  as  may  be  in  excess  of  the 
dividend  to  which  the  creditor  is  found  to  be  entitled.  Hence 
no  credit  can  be  allowed  in  such  case  until  the  amount  to  which 
the  creditor  is  entitled  has  been  ascertained.  If  the  estate  be 
solvent  and  the  debt  undisputed,  or  sufficient  proof  is  offered 
thereon  at  the  time  of  the  accounting,  the  administrator  is 
generally  entitled  to  credit  for  the  amoimt  paid,  no  matter 
w^hen  he  paid  it;  and  conversely,  if  the  administrator,  even  in  a 
State  which  allows  the  payment  of  debts  of  deceased  persons 
without  previous  adjudication,  pay  a  debt  without  sufficient 
proof  of  its  validity,  he  is  not  protected  by  such  payment.  In 
some  States  credit  is  allowed  for  proved  up  claims  only;  in 
such  States  credit  will  not  be  allowed  in  the  administration 
account  for  the  payment  of  claims  not  so  proved  up. 

At  common  law  it  seems  an  administrator  or  executor  cannot 
recover  an  overpayment  from  the  creditor.  In  most  jurisdic- 
tions it  is  now  held  that  he  can  recover  a  pajniient  made  under 
mistake;  though  some  courts  deny  relief  when  the  mistake  was 
as  to  a  matter  of  law  as  distinguished  from  a  matter  of  fact. 

§  621.  Pasrments  at  Discount,  or  in  Depreciated  Currency.  — 
An  executor  or  administrator  cannot  make  any  profit  to  himself 
by  speculating  with  trust  funds,  and  if  he  compromise  claims 


460  THE   L.\W   OF  DECEDENTS*   ESTATES.        [§§  522,  523 

or  pay  off  the  debts  at  a  discount,  or  procure  an  assignment  of 
such  to  himself  or  to  the  estate,  he  is  entitled  to  credit  for  such 
amount  only  as  he  shall  have  actually  paid  out.  So  if  he  pay 
in  a  depreciated  currency,  he  can  only  receive  credit  for  such 
value  of  such  currency  as  he  stands  charged  with,  and  not  for 
the  amount  of  the  debt  in  money  of  higher  value;  or  if  he  pay 
a  debt  of  the  estate  in  property  of  his  own  of  less  value  than  the 
amount  of  such  debt,  he  can  obtain  credit  only  for  the  value  of 
his  property. 

§  522.  Credits  for  Difference  between  Inventorisd  and  Actual 
Values.  —  The  personal  representative  is  prima  facie  charged 
with  the  values  in  his  inventory  and  appraisement.  He  is  en- 
titled to  credit  for  the  difference  between  the  amount  with 
wliich  he  stands  charged  and  the  amount  actually  realized. 
The  onus  is  on  the  administrator  who  asks  credit  for  the 
amount  of  uncollected  debts,  to  prove  that  they  are  uncol- 
lectible. 

In  like  manner  the  administrator  is  entitled  to  credit  for  all 
property  with  which  he  is  improperly  charged  in  the  inventory, 
or  which  has  been  lost  without  fault  on  his  part,  or  consumed 
in  the  administration. 

§  523.  Interest  on  Advancements  by  the  Executor  or  Adminis- 
trator. —  The  condition  of  estates  is  sometimes  such  as  not  only 
to  authorize,  but  strongly  commend,  the  advancement  of  money, 
where  debts,  perhaps  bearing  heavy  interest,  are  to  be  paid,  and 
the  immediate  reduction  of  the  real  or  personal  property  into 
ready  cash  to  meet  such  pa>Tiients  might  be  attended  with 
serious  loss.  If  under  such  circumstances  the  administrator  will 
borrow  or  advance  the  money  necessary  to  relieve  the  estate, 
both  justice  and  policy  require  that  he  should  have  credit  for 
customary  interest  thereon. 


§§  524,  525]  COilPENSATION   OF  EXECUTORS.  461 


CHAPTER  LVII. 

COMPENSATION  OF  EXECUTORS  AND  ADMINISTRATORS. 

§  524.     Commissions  allowed  by  Statute  and  in   the  Absence 

of  Statutes.  —  At  common  law,  executors  and  administrators 
are  entitled  to  no  compensation  for  their  personal  trouble  and 
loss  of  time  in  the  discharge  of  their  duties,  either  at  law  or  in 
equity.  But  now  almost  every  State  makes  statutory  provision 
for  the  compensation  of  executors  and  administrators. 

Like  other  expenses  of  administration,  compensation  to  the 
executor  or  administrator  is  payable  before  debts,  legacies,  or 
distributive  shares;  and  it  has  been  held  that  the  policy  of  the 
law  and  the  interest  of  estates  demand  this  compensation  to 
be  exempt  from  attachment  by  their  creditors;  and  the  same 
ground  forbids  the  assignability  of  his  commissions  before  they 
are  ascertained  and  hquidated  in  the  manner  authorized  by  law. 

In  most  States  the  statutes  provide  fixed  rules,  making  the 
determination  of  the  compensation  a  matter  of  mathematical 
calculation.^  In  those  few  of  the  American  States  in  whose 
statutes  no  pro\'ision  for  the  compensation  of  executors  and 
administrators  is  found,  the  com-ts  usually  allow,  as  a  matter 
of  justice  and  policy,  such  compensation  as  may  be  considered 
reasonable,  varying  in  amount  according  to  the  time,  trouble, 
and  responsibility  involved,  as  well  as  the  magnitude  of  the 
estate  administered,  —  usually  five  per  cent  on  personal  and 
two  and  a  half  on  real  estate. 

§  525.  Compensation  in  Cases  of  Maladministration.  —  It  is 
held  in  numerous  cases  that  compensation  must  be  refused  if  the 
administrator  has  been  guilty  of  wilful  default  or  gross  negli- 
gence in  the  management  of  the  estate,  whereby  the  same  has 
suffered  loss.    This  principle  is  adhered  to  in  some  of  the  States 

^  An  abstract  of  the  various  statutes  can  be  found  in  Woemer  on  Ad- 
ministration, §  524. 


462  THE   LAW   OF  decedents'   ESTATES.  [§  52C 

in  which  the  compensation  is  fixed  by  statute,  denying  any  dis- 
cretion in  the  matter  to  the  courts  on  the  ground  that  the  stat- 
ute gives  compensation  for  faithful  administration  only. 

The  questions  arising  from  maladministration  are  apt  to  be 
accompanied  by  insolvency  of  the  administrator,  and  the  prac- 
tical issue  is  often  as  to  the  extent  of  the  liability  of  the  sureties 
on  the  administrator's  bond.  The  loss  resulting  from  the  ad- 
ministrator's dereliction  the  sureties  must  make  good  in  toto. 
Should  the  sureties  be  penalized  in  a  further  sum  through  re- 
fusing them  allowance  for  commissions  for  services  properly 
rendered?  It  would  seem  fair  that  to  the  extent  to  which  the 
estate  has  been  properly  administered,  and  on  the  amount 
which  either  he  or  his  sureties  pay  to  make  up  for  the  losses  by 
devastavit  or  maladministration,  the  administrator  should  be 
allowed  such  commissions  as  the  statute  provides. 

§  528.  Upon  what  Property  Commissions  are  Allowable.  —  The 
statutes  usually  measure  the  compensation  of  the  personal  rep- 
resentative by  a  percentage  on  the  property  administered. 
Manifestly  this  excludes  property  belonging  to  strangers,  though 
it  was  inventoried,  and  the  property  allowed  the  family  abso- 
lutely, whenever  it  goes  to  the  family  directly  without  inter- 
vention of  the  personal  representative. 

A  safe  and  convenient  rule  in  this  respect,  so  far  as  it  goes,  is 
that  commissions  are  allowable  to  the  administrator  on  such 
property,  and  such  property  only,  as  constitutes  assets  in  his 
hands;  i.  e.,  such  property  as  passes  from  the  deceased  to  cred- 
itors, heirs,  devisees,  distributees,  or  legatees  through  his  cus- 
tody. The  rule  excludes  commissions  on  advancements,  all 
uncollectible  debts,  and  property  lost  or  perished. 

It  is  held  in  one  or  two  States,  however,  that  commissions 
are  not  allowable  on  property  delivered  in  kind  to  the  distrib- 
utee, nor  on  a  specific  legacy  turned  over  to  the  legatee,  nor  on 
a  debt  due  to  the  testator  and  specifically  bequeathed  to  the 
executrix.  The  general  rule,  however,  is  otherwise.  "  On  general 
principles,"  says  Woodbury,  J.,  in  West  v.  Smith,^  "it  would 
seem  just  and  proper  for  all  such  courts  to  make  some  compen- 
sation to  executors  for  such  services  as  paying  over  legacies,  no 
less  than  for  paying  debts.  In  the  case  of  specific  legacies  the 
»  8  How.  (U.  S.)  402,  411. 


§§  527,  528]  COMPENSATION  OF  EXECUTORS.  463 

trouble  and  risk  are  as  great,  if  not  greater,  than  in  money 
legacies,  and  it  would  be  difficult  to  find  elementary  principles 
to  justify  commissions  in  one  case,  and  withliold  them  in  the 
other." 

§  527.  Compensation  for  Extra  Services.  —  The  statutes  of  a 
number  of  States  allow  extra  compensation  to  executors  and 
administrators  for  the  rendition  of  services  to  the  estate  outside 
of  the  scope  of  their  ordinary  duties.  Unless  such  extra  com- 
pensation is  within  the  language  or  spirit  of  the  statute,  it  can- 
not be  allowed,  because  at  common  law  then-  personal  ser\'ices 
are  wholly  gratuitous. 

Keeping  accounts  or  collecting  rents,  for  instance,  are  matters 
for  which  the  personal  representative  may  ordinarily  employ 
help,  for  which  he  claims  credit  in  his  settlements;  but  if  he 
does  such  work  himself,  he  cannot,  in  the  absence  of  such  statutes, 
claim  extra  compensation.  The  usual  services  for  which  extra 
compensation  is  claimed  are  those  rendered  as  attorney  at  law, 
as  manager  of  some  special  business  (e.  g.,  a  plantation),  or  as 
expert  accountant.  But  extra  compensation  is  exceptional, 
and  rests  on  statute. 

§  528.  Compensation  of  Joint  Executors  or  Administrators.  — 
It  is  obvious  that,  if  an  estate  is  administered  on  by  more  than 
one  person,  all  the  persons  so  administering  will,  Jointly,  be 
entitled  to  no  greater  compensation  than  one  administering 
alone  would  be  entitled  to.  In  some  of  the  States  there  is  no 
power  in  probate  courts  to  apportion  the  commissions  among 
several  executors  or  administrators  according  to  the  amount 
or  value  of  their  respective  services;  but  in  other  States,  where 
one  has  performed  more  than  his  share  of  the  work,  the  court 
may  allow  him  a  proportionate  share  of  the  commissions.  Where 
the  probate  court  has  no  jurisdiction  to  divide  commissions,  it 
has  been  held  that  equity  might  decree  the  division.^ 

Agreements  amounting  to  a  trading  in  the  appointment  of 
an  administrator,  or  for  the  transfer  of  the  right  to  adminis- 
tration for  a  consideration  are  considered  as  trafficking  for  office, 
and  are  void  as  being  against  public  policy.  But  an  agreement 
between  executors  or  administrators  as  to  their  respective 
shares  of  the  commission  does  not  fall  under  the  inliibition, 
'  See  Woemer  on  Administration,  §  530. 


434  THE  L-^W   OF  decedents'   ESTATES.        [§§  529,  530 

and,  indeed,  there  are  cases  holding  that  an  administrator, 
appointed  wdth  the  consent  of  others  equally  entitled  to  ad- 
minister, is  bound  by  his  agreement  or  promise  not  to  charge 
commission.^ 

§  529.  Compensation  to  Successive  Administrators.  —  Wliere 
one  of  several  executors  or  administrators  dies  pending  admin- 
istration, the  commissions  earned  up  to  the  period  of  such  death 
must  be  divided  on  the  principles  laid  down  in  the  foregoing 
section.  The  survivors  would  get  the  commissions  subsequently 
accruing.  The  question  arising  in  this  case  as  to  what  portions 
of  the  commissions  are  attributed  to  the  period  prior  to  such 
death  is  the  same  which  is  presented  in  the  case  of  administra- 
tion de  bonis  non. 

Where  there  is  administration  de  bonis  non,  only  one  commis- 
sion should  come  out  of  the  estate.  In  some  States  probate 
courts  have  power  to  apportion  the  compensation  fixed  by  law 
for  the  whole,  according  to  sound  judgment;  the  second  admin- 
istrator being  entitled  to  commissions  for  the  whole  adminis- 
tration, less  what  the  first  administrator  is  entitled  to.  ^Miere 
this  power  does  not  exist,  injustice  is  often  done  the  first  ad- 
ministrator's estate,  since  commissions  are  frequently,  if  not 
usually,  only  earned  when  property  is  fully  administered,  which 
implies  its  proper  final  disbursement. 

This  difficulty  is  greatly  reduced  in  those  States  in  which 
part  of  the  commissions  are  allowed  for  taking  the  estate  into 
possession,  and  part  for  disbursing  the  same.  A  convenient 
measure  is  thus  afforded  for  the  apportionment  of  compensation 
among  several  successive  administrators,  which  cannot  work 
great  injustice. 

§  530.  Bequest  to  Executor  as  bearing  on  his  Right  to  Commis- 
sion. —  A  bequest  to  an  executor,  unless  there  is  language  in 
the  will  indicating  that  it  was  intended  for  specific  compensa- 
tion for  the  services,  does  not  deprive  him  of  the  right  to  charge 
commissions.  But  when  it  appears  that  the  legacy  was  given 
in  lieu  of  com^missions,  or  where  it  imposes  on  the  executor  the 
condition  that  he  shall  not  have  commissions,  the  current  of 
authority  is  that  the  executor  or  court  cannot  defeat  the  pro- 
visions of  the  will.  No  case  for  election  is  presented.  But  in  a 
1  Bate  V.  Bate,  11  Bush  639. 


§§  531,  532]  COMPENSATION   OF  EXECUTORS.  465 

number  of  States  the  executor  is  required  by  statute  to  re- 
nounce any  provision  made  in  the  will  to  compensate  him  for 
his  services,  or  forfeit  his  right  to  compensation  under  the 
statute. 

§  531.  Commissions  where  the  same  Person  is  Executor  and 
Trustee.  —  Where  by  the  terms  of  a  will  the  functions  of  an  ex- 
ecutor and  of  a  testamentary  trustee  coexist  in  the  same  person, 
it  is  sometimes  difficult  to  determine  whether  such  person  is 
entitled  to  compensation  for  administering  property  in  both 
capacities,  or  whether,  as  it  is  usually  expressed,  he  is  entitled 
to  double  commissions.  On  principle,  it  seems  that  where  the 
same  person  is  called  on  to  perform  two  distinct  acts,  for  each 
of  which  the  law  awards  compensation,  he  should  receive  such 
compensation  for  both,  that  is,  double  commissions,  because  the 
compensation  is  not  awarded  as  a  bounty  or  gratuity,  but  as 
the  equivalent  for  services  rendered,  and  it  is  therefore  indif- 
ferent whether  they  were  performed  by  the  same  or  by  different 
persons.  This  principle  is  generally  recognized,  even  where 
double  commissions  are  denied.  But  the  functions  of  an  ex- 
ecutor and  of  a  trustee  may  be  so  interwoven  and  blended  that 
they  are  inseparable,  and  when  so,  as  must  be  the  case  whenever 
the  trust  is  annexed  to  the  office  of  executor,  the  act  must  be 
deemed  to  be  that  of  the  executor  alone,  and  double  commissions 
are  not  allowable.  The  intention  of  the  testator  must  be  de- 
cisive, in  many  cases,  of  the  question  whether  an  executor  and 
trustee  is  entitled  to  double  commissions. 

§  532.  Credit  for  Commissions  in  the  Administration  Account. 
—  Experience  demonstrates  that  the  safest  and  most  convenient 
course,  both  for  the  accountant  and  the  beneficiaries  of  the  es- 
tate, is  to  take  credit  on  each  settlement  or  accounting,  whether 
partial  or  final,  for  commissions  on  so  much  of  the  whole  estate 
as  has  been  administered,  whether  disbursed  for  expenses  of 
administration,  in  the  payment  of  debts,  or  in  distribution  or 
payment  of  legacies,  and  on  which  commissions  are  allowable 
by  law.  On  the  final  settlement  of  the  account,  commissions 
should  be  allowed  on  the  whole  of  the  balance  in  the  administra- 
tor's hands  subject  to  be  disposed  of  by  the  order  of  the  court, 
and  deducted  from  such  balance.  This  system  is  inexact  in 
allowing  commissions  on  commissions  in  the  final  settlement. 


466  THE   LAW   OF  DECEDENTS'   ESTATES.  j^§  532 

If,  for  instance,  the  commission  is  five  per  cent  and  the  final 
fund  one  thousand  dollars,  this  system  allows  the  administrator 
$50,  whereas  he  should  only  receive  five  one  hundred  and  fifths 
of  $1000,  or  $47.62.  In  practice,  however,  the  exact  calculation 
is  very  rarely  made. 


§§  533,  534]        METHOD  IX  ADJUDICATIXG  THE  ACCOUNT.        467 


CHAPTER   LVIII. 

OF  THE  METHOD  AND  PROCEDURE  IN  ADJUDICATING  THE  ACCOUNT. 

§  533.  Devastavit.  —  At  common  law,  devastavit,  or  devastave- 
runt,  is  the  name  of  a  writ  given  to  any  person  who  has  been 
injured  in  his  rights  in  consequence  of  the  misapphcation  or 
waste  of  the  assets  or  property  of  an  estate  by  one  or  more  ex- 
ecutors or  administrators,  whereby  he  or  they  have  made  them- 
selves liable  to  answer  for  the  damages  out  of  their  own  estate. 

This  machinery  for  making  the  administrator  personally 
liable  is  long  obsolete;  but  the  term  has  been  retained,  and  is 
used  in  America  as  a  convenient  designation  for  such  acts  of  the 
executor  or  administrator  as  render  him  liable  to  the  estate  out 
of  his  own  means,  and  has  no  other  significance;  and  where 
such  liability  is  found  according  to  the  principles  of  law  applic- 
able, the  effect  of  the  common-law  remedy  of  devastavit  is  ac- 
complished by  the  falsification  or  surcharge  of  his  account. 

§  534.  Accounting  by  Co-executors  or  Co-administrators. — The 
principles  governing  the  accounting  by  several  joint  executors 
or  administrators  are  inferable  from  what  has  been  stated  in 
connection  with  the  subject  of  their  respective  rights  and  liabil- 
ities. As  a  general  rule,  where  they  keep  separate  accounts, 
each  charging  himself  with  so  much  of  the  estate  only  as  comes 
into  his  own  hands,  neither  is  chargeable  with  the  assets  in  the 
hands  of  the  other;  and  in  such  case  their  separate  accounts 
cannot  be  combined  in  making  the  order  of  distribution.  So 
either  of  them  may  discharge  himself  by  showing  proper  ad- 
ministration of  all  that  came  into  his  own  hands;  but  on  a  joint 
accounting  they  are  jointly  liable  for  all  assets  received  by  any 
of  them.  So  two  executors  who  have  given  a  joint  bond  with 
sureties  are  jointly  liable  to  creditors  and  distributees  for  the 
defalcation  of  either,  before  the  sureties;  but  in  equity  the  ex- 
ecutor actually  receiving  the  assets  is  primarily  liable,  if  his 
co-executor  had  no  means  of  knowing  him  to  be  insolvent,  and 
did  not  join  in  the  misapplication. 


468  THE  L.\W  OF  decedents'   ESTATES.        [§§  535,  536 

§  535.  Accounting  by  Successive  Administrators.  —  Under  the 
common  law  view  any  change  in  an  asset  by  the  administrator 
constituted  technical  administration.  The  administrator  de 
bonis  non  could  require  of  his  predecessor  or  his  personal  rep- 
resentative only  the  property  technically  not  administered,  and 
was  responsible  only  for  such  to  parties  interested  in  the  estate. 
For  property  which  was  no  longer  in  specie,  that  is,  for  such  as 
had  been  technically  administered,  creditors  and  other  parties 
in  interest  had  to  look  to  the  prior  administrator  or  his  estate. 
Under  the  American  system,  there  is  no  complete  administration 
on  any  one  asset  until  it  has  been  disbursed  for  proper  purposes. 
The  administrator  de  bonis  non  must  settle  with  the  prior  ad- 
ministrator, or  his  personal  representative,  for  all  the  original 
estate  which  has  not  been  paid  out  in  course  of  administration, 
including  all  that  has  changed  form,  e.  g.,  notes  collected.  The 
administrator  de  bonis  non  acts  as  trustee  for  all  parties  who  are 
beneficiaries  of  the  estate,  and  they  look  primarily  to  him,  and 
not  to  the  former  administrator  or  his  personal  representative. 

The  American  system  is  the  law  in  most  States,  and  the  tend- 
ency everywhere  is  toward  it.  Some  States,  however,  still 
retain  the  old  system;  and  others  are  in  a  somewhat  confusing 
transition.  The  nature  of  the  settlement  between  the  adminis- 
trator de  bonis  non  and  the  prior  administration  depends  on  the 
view  of  what  constitutes  administration  in  the  respective  States. 

It  is  the  province  of  the  personal  representative  of  a  deceased 
guardian,  administrator,  or  trustee  to  adjust  the  accounts  of 
his  decedent  with  the  estate  for  which  he  acted.  The  probate 
court  has  authority  to  compel  such  settlements. 

The  settlement  between  an  administrator  de  bonis  non  and  a 
former  administrator,  although  final  as  to  the  parties  thereto, 
being  conclusive  upon  heirs  and  others  interested  in  the  estate, 
and  including  waste  committed  by  the  former  administrator,  is 
not  such  final  settlement  of  the  estate  as  requires  the  notice  to 
be  given  to  all  persons  in  interest  previous  to  the  winding  up  of 
an  estate ;  such  persons  are  represented  by  the  administrator  de 
bonis  non,  and  to  him  alone  all  assets  after  the  displacement  of 
an  executor  or  administrator  are  due  and  payable. 

§  536.  Accounting  for  Assets  received  in  Foreign  Jurisdiction.  — 
The  liability  of  a  foreign  executor  or  administrator  to  account 


§§  537,  538]        METHOD   IN  ADJUDICATING  THE  ACCOUNT.         469 

generally,  and  of  a  domestic  administrator  to  account  for  assets 
received  in  a  foreign  country  or  sister  State,  appears  more  fully 
from  the  chapter  treating  of  principal  and  ancillary  adminis- 
tration. It  is  stated,  as  a  general  proposition,  that  a  foreign 
executor  or  administrator  cannot  be  compelled  to  account, 
unless  he  has  brought  assets  into  the  domestic  jurisdiction; 
nor  then,  necessarily,  as  one  answerable  to  the  local  probate 
court,  or  in  his  representative  character,  but  rather  as  trustee 
in  chancery,  on  general  maxims. 

Even  then  the  executor  is  accountable,  as  trustee,  only  "  for 
the  breach  of  some  express  or  constructive  trust  under  the  will, 
or  as  a  trustee  ex  maleficio"  ^  As  a  rule  the  representative  is 
not  chargeable  for  assets  in  a  foreign  jurisdiction  not  received 
by  him. 

§  537.  Compelling  Final  Settlement.  —  Final  settlements  can 
not  be  compelled  before  the  administrator  has  had  time  or  op- 
portunity to  collect  all  the  assets,  and  to  ascertain  and  discharge 
all  its  liabilities.  But  if  the  failure  to  convert  assets  into  cash 
is  chargeable  to  the  fault  of  the  administrator,  so  that  he  can 
be  held  chargeable  with  their  value,  final  settlement  can  be 
ordered.  So,  too,  when  all  parties  interested  agree  to  a  division 
of  the  assets  in  specie. 

As  a  general  rule,  final  settlement  may  be  enforced  in  the 
probate  court  at  any  time  after  the  expiration  of  the  period 
allowed  creditors  to  prove  their  claims  against  the  estate,  or 
at  a  time  specifically  pointed  out  by  statute,  if  no  special  cir- 
cumstances intervene  rendering  final  settlement  impracticable 
at  such  time.  If  parties  interested  fail  to  apply  for  final  settle- 
ment for  a  long  time,  it  is  sometimes  held  that  their  application 
may  be  refused  on  the  ground  of  their  laches,  in  justice  to  the 
administrator. 

§  538.  Falsifications  and  Surcharges  on  Final  Settlement.  —  It 
is  the  duty  of  the  court  on  final  settlement  to  correct  any  errors, 
whether  appearing  in  that  report,  in  the  prior  annual  settle- 
ments, or  in  any  other  manner;  and  this  although  there  be  no 
contest.  Any  mistake  should  be  corrected  upon  which  a  con- 
clusive judgment  has  not  been  rendered. 

The  accountant  cannot,  of  course,  be  compelled  to  conform 
I  Lewis  V.  Parrish,  115  Fed.  (C.  C.  A.)  285,  287. 


470  THE   LAW   OF  DECEDFNTS'   ESTATES.       [§§  539,  540 

his  views  to  those  of  the  court;  but  the  court  itself  will  restate 
the  account,  and  render  judgment  thereon.  In  the  final  set- 
tlement credit  may  be  given  for  future  expenses  necessarily 
incurred  by  the  administrator  in  complying  with  the  order  of 
the  court  on  final  settlement. 

§  539.  Verification  and  Evidence.  —  The  statutes  of  most 
States  require  the  account  to  be  verified  by  the  affidavit  of  the 
executor  or  administrator,  which  may  be  taken  before  any 
officer  competent  to  administer  oaths.  For  all  items  of  credit 
claimed,  there  should  be  proper  vouchers;  but  strict  proof  will 
not  be  required  where,  from  the  nature  of  the  transaction, 
vouchers  cannot  be  produced,  or  after  a  great  lapse  of  time. 
The  onus  probandi  rests  upon  the  executor  or  administrator  to 
establish  the  validity  of  any  item  of  credit  in  the  account  which 
is  challenged,  and  for  want  of  sufficient  prima  facie  proof  such 
credit  will  be  rejected. 

Receipts  given  by  parties  still  living  at  the  time  of  the  trial 
are  not,  in  strictness,  legal  evidence  of  pajmient;  but  they  are 
received  as  prima  facie  proof,  unless  the  other  side  show  a  rea- 
sonable ground  for  their  impeachment. 

The  administrator  in  such  inquiry  is  not  competent  to  testify 
for  himself  at  common  law;  but  under  the  law  of  most  States, 
removing  the  disqualification  of  interest,  he  can  do  so. 

§  540.  Judgment  on  the  Adjudication  of  the  Account.  —  Any 
person  having  an  interest  in  the  result  of  the  accounting  may 
appear  when  the  account  is  before  the  court  for  adjudication, 
and  object  to  any  of  the  items  for  which  credit  has  been  taken 
or  is  claimed,  and  insist  on  charges  against  the  accountant 
which  have  been  omitted. 

The  rights  of  a  person  claiming  property  by  a  title  paramount 
to  that  of  the  deceased,  or  the  rights  of  a  creditor  of  a  legatee 
lie  outside  of  the  settlement.  They  are  not  parties  in  interest, 
and  have  no  right  to  appear. 

The  proper  method  of  objecting  to  the  account  is  to  state  the 
exceptions  in  writing,  pointing  out  each  item  objected  to  and 
stating  the  ground  of  the  objection,  and  to  file  such  statement 
so  as  to  give  sufficient  notice  to  the  other  side  to  enable  them 
to  prepare  their  defence  if  they  have  any.  But  such  excep- 
tions need  not  necessarily  be  in  writing  where  the  issue   is 


§  540]  METHOD   IN  ADJUDICATING  THE  ACCOUNT.  471 

tendered  otherwise,  as  by  hearing  on  the  appearance  of  the 
parties. 

The  exceptors  are  not  concluded  from  taking  futher  exceptions 
to  errors  in  the  account  which  become  apparent  subsequent  to 
the  fihng  of  the  original  objections,  and  which  they  had  no 
means  of  knowing  at  the  time;  but  in  such  case  there  must  be 
sufHcient  time  given  to  the  adverse  part  to  be  heard  in  defence, 
and  to  procure  witnesses  to  establish  the  same. 


472  THE  LAW  OF  DECEDENTS'   ESTATES.         [§§  541-543 


CHAPTER  LIX. 

OF  APPEALS  FROM  COURTS  OF  PROBATE. 

§  541.  Right  of  Appeal  given  by  Statutes.  —  The  right  of  ap- 
peal rests  solely  upon  statutory  provisions,  and  unless  these 
provisions  are  complied  with,  the  right  cannot  be  made  avail- 
able; and  there  can  be  no  appeal  from  any  order,  judgment 
or  decree,  unless  the  right  to  such  appeal  be  given  by  statute. 

§  542.  Who  may  appeal.  —  Where  the  right  to  appeal  exists, 
it  may  be  exercised  by  any  person,  whether  a  party  to  the  record 
or  not,  who  is  aggrieved  by  the  judgment  or  decree  pronounced 
by  the  probate  court.  No  person  has  the  right  to  appeal  unless 
he  is  interested  in  the  estate  as  creditor,  legatee,  heir  at  law,  or 
in  some  pecuniary  manner. 

§  643.  From  what  Decisions  of  Probate  Courts  Appeals  are  Allow- 
able. —  It  is  obvious  that  there  can  be  no  appeal  from  any  ac- 
tion of  a  lower  court  which  would  not,  but  for  the  appeal,  con- 
stitute a  binding,  conclusive,  and  final  determination  by  order, 
decree,  or  judgment,  of  the  rights  of  the  parties  affected  thereby. 
WTiether  such  order,  decree,  or  judgment  constitutes  a  final 
judgment,  in  this  sense,  is  not  always  clear  at  first  blush.  It 
is  deducible  from  the  decisions  on  this  subject,  as  a  general 
principle,  applicable  to  most  cases  in  the  absence  of  statutory 
provisions  directing  otherwise,  that  any  order,  judgment,  or 
decree  of  the  probate  court  capable  of  being  enforced,  or  taking 
effect  without  further  order,  may  be  appealed  from;  and  that 
no  action  of  the  probate  court  can  be  appealed  from  which 
requires  a  subsequent  order  or  judgment  to  give  it  effect. 

In  each  State  the  answer  to  the  question  whether  an  appeal 
lies  from  a  probate  decision  involves  the  special  statutes  bearing 
on  the  matter  in  hand.  The  rulings  rest  on  local  statutes,  and 
are  not  inconsistent  with  the  general  principles  stated.  The 
explanation  of  such  cases,  however,  is  beyond  the  scope  of  this 
treatise.-^ 

^  For  numerous  illustrations,  see  Woemer  on  Administration,  §  545. 


§§  544,  545]      OF  APPEALS  FROM  COURTS  OF  PROBATE.  473 

§  544.  How  Appeal  is  taken.  —  It  has  already  been  stated, 
that  the  right  of  appeal  is  dependent  upon  compliance  with  all 
the  requirements  of  the  statute  from  which  it  originates. 

The  time  within  which  appeal  must  be  taken  is  fixed  by  the 
statute.  If  the  statute  contain  no  saving  clause,  the  right  to 
appeal  after  the  period  allowed  by  the  statute  is  barred,  even  to 
married  women  and  infants. 

The  party  appealing  is  always  required  to  give  bond,  except 
in  cases  where  the  executor  or  administrator  appeals  in  the  in- 
terest of  the  estate  and  has  given  security  on  his  administration 
bond.  An  executor  is  entitled  to  an  appeal  without  surety' where 
the  judgment  or  decree  is  to  affect  only  the  assets,  but  where 
he  is  in  a  situation  in  which  a  personal  judgment  or  decree  can 
be  rendered  against  him  which  may  make  him  liable  out  of  his 
own  funds,  he  is  no  more  entitled  to  appeal  without  surety  than 
any  other  person. 

All  parties  having  an  interest  in  the  estate  are  parties  to  the 
appeal,  and  where  the  statute  requires  notice  of  the  appeal  to 
be  given  to  the  adverse  party,  it  must  be  given  to  all  who  have 
any  interest  in  the  controversy;  notice  to  the  probate  court  is 
insufficient,  although  no  one  had  attended  at  the  trial  in  that 
court.  The  appeal,  for  the  want  of  statutory  notice,  will  in 
some  States  be  dismissed,  in  others  continued  for  the  purpose  of 
giving  notice. 

While  any  one  item  in  an  account  is  a  separate  claim,  demand- 
ing a  separate  judgment  from  which  appeal  may  be  taken,  yet 
a  party  is  entitled  to  but  one  appeal  from  the  same  decree,  al- 
though the  decree  makes  disposition  of  various  claims,  and  it 
is  improper  to  allow  a  separate  appeal  for  each  claim. 

§  645.  Powers  of  the  Probate  Court  after  Appeal.  —Upon  com- 
pliance with  the  statutory  requirements  on  the  part  of  the  ap- 
pellant, and  the  grant  of  appeal  by  the  probate  court,  the  matter 
appealed  from  is  removed  from  such  court,  and  it  has  no  power, 
pending  that  appeal,  to  take  further  steps  in  regard  thereto. 
But  the  judgment  of  the  appellate  court  is  limited  to  the  par- 
ticular matter  appealed  from,  the  appeal  in  no  wise  affecting 
the  jurisdiction  of  the  probate  court  over  all  matters  not  in- 
volved in  the  appeal.  The  effect  on  an  appeal  is,  generally,  to 
vacate  the  judgment  or  decree  of  the  probate  court,  which  is 
thenceforth  of  no  force  or  effect. 


474  THE  LAW  OF  decedents'   ESTATES.'      [§§546,  547 

The  statutes  of  most  States  point  out  in  what  cases  and  under 
what  circumstances  an  appeal  from  the  order,  judgment,  or 
decree  of  the  probate  court  shall  operate  as  a  supersedeas.  It  is 
generally  enacted  that  an  appeal  properly  perfected  shall  work 
a  supersedeas  if  bond  be  given.^ 

§  546.  Nature  of  the  Trial  in  the  Appellate  Court.  —  Probate 
powers  are  vested,  in  some  of  the  States,  in  courts  of  ordinary 
jurisdiction  for  the  trial  of  all  cases  at  law  and  in  equity.  From 
such  courts  probate  decisions  go  up  to  the  court  of  last  resort 
upon  the  record  for  re\iew  of  errors. 

But  in  most  States  these  matters  are  originally  tried  by  tri- 
bunals specially  created  as  courts  of  probate.  On  appeal  from 
decisions  of  such  courts  in  most  states  the  case  is  triable  de 
novo  in  some  court  intermediate  between  the  probate  court  and 
court  of  last  resort,  before  the  latter  can  obtain  jurisdiction. 

§  547.  Nature  of  the  Trial  de  Novo.  —  On  appeal  to  a  court  not 
of  last  resort,  the  appellate  court  proceeds  as  if  it  had  original 
jurisdiction  of  the  matter  brought  before  it  by  appeal,  which 
vacates  and  annuls,  for  the  purposes  of  such  trial,  the  judgment 
of  the  court  below.  The  appeal  brings  up  the  entire  decree 
appealed  from;  new  grounds  may  be  taken  in  the  appellate 
court,  and  new  evidence  introduced.  But  it  is  a  settled  rule 
that  the  issue  tried  in  the  appellate  court  must  be  the  same, 
and  no  other,  than  that  which  was  tried  in  the  court  below,  and 
that  the  appellate  court  will  grant  such  relief,  and  such  only, 
as  the  court  below  should  have  given;  it  acquires  no  jurisdiction 
of  a  subject-matter  by  the  appeal  of  which  the  court  appealed 
from  had  none;  but  in  matters  of  practice  follows  its  OAvn  rules. 

*  For  statutory  details,  see  Woemer  on  Administration,  §  548. 


548]  OF   THE   CLOSE    OF   THE   ADMINISTRATION.  475 


TITLE   NINE. 

OF   THE    CLOSE   OF   THE   ADMINISTRATION. 


PART  I. 
OF  DISTRIBUTION  TO  LEGATEES  AND  NEXT  OF  KIN. 


§  548.  Duty  of  Probate  Courts  to  order  Distribution.  —  The 
succeeding  chapters  consider  the  procedure  by  which  the  rights 
of  the  distributees  of  the  estate  are  ascertained  and  announced, 
and  the  methods  for  their  enforcement  against  executors  and 
administrators. 

In  England  it  is  still  practically  necessary  to  resort  to  courts 
of  equity  for  the  purpose,  but  in  this  country  it  is  in  most  States 
the  duty  of  probate  courts,  when  it  appears  that  all  debts,  leg- 
acies, and  expenses  of  administration  have  been  paid,  to  order 
the  distribution  of  the  residue,  and  to  compel  payment  of 
the  distributive  shares  to  those  who  may  be  entitled  thereto. 
Before  considering  the  details  of  the  proceedings  before  the 
court,  it  seems  desirable  to  discuss  the  subject  of  advance- 
ments, because  these  constitute  an  element  of  distribution 
themselves,  and  must  necessarily  be  taken  into  account  in 
ascertaining  the  rights  of  the  respective  distributees. 


476  THE  LAW  OF  DECEDENTS'   ESTATES.       [§§  549,  550 


CHAPTER  LX. 

OF  ADVANCEMENTS. 

§  549.  Definition  of  Advancements.  —  Advancements  are  de- 
scribed as  gifts  by  a  parent,  in  yroBsenti,  of  a  portion  or  all  of  the 
share  of  his  child  in  his  estate  which  would  fall  to  it  under  the 
Statute  of  Distribution  or  Descent;  or,  as  a  giving  by  anticipa- 
tion, during  the  intestate's  lifetime,  of  the  whole  or  part  of  what 
the  child  would  be  entitled  to  on  the  donor's  death.  When 
the  doctrine  is  applied  in  making  distribution,  the  same  is 
added  to  the  estate,  and  the  whole  divided  among  the  children, 
the  advancement  being  retained  by  him  to  whom  it  was  given. 
For  instance,  the  deceased  left  $20,000  and  four  children;  he 
had  advanced  $4000  to  his  son  A.  Each  child  save  A  gets 
S6000  from  the  estate.  A  gets  $2000  from  the  estate  and  retains 
the  advancement. 

The  gift,  in  order  to  constitute  an  advancement,  must  be 
irrevocable,  divesting  entirely  all  of  the  ancestor's  interest,  and 
forming  no  part  of  the  property  to  be  administered;  hence,  the 
donee  can  in  no  case  be  compelled  to  refund  what  he  has  re- 
ceived. But  unless  he  consent  to  bring  it  into  hotchpot,  and 
take  his  share  upon  an  equal  division  of  the  estate,  including 
what  is  left  for  distribution  as  well  as  all  that  has  been  advanced 
during  the  intestate's  lifetime,  he  will  not  be  entitled  to  par- 
ticipate in  the  distribution.  To  bring  into  hotchpot  does  not 
mean  that  the  party  advanced  shall  return  the  property  re- 
ceived in  specie  or  in  kind,  or  even  that  he  shall  relinquish  his 
interest  therein ;  but  only  that  its  value  shall  be  reckoned  against 
him  in  the  distribution.  And  since  the  party  advanced  has  his 
election  whether  to  keep  what  he  has  and  relinquish  his  claim  to 
further  distribution,  or  to  come  into  hotchpot,  he  may  wait, 
before  electing,  until  the  value  of  the  estate  is  determined. 

§  550.  Distinction  between  Advancement  and  Ademption.  —  It 
is  of  practical  service  to  keep  clear  the  distinction  between  an 


§§  551,  552]  OF  ADVANCEMENTS.  477 

advancement  and  an  ademption  or  satisfaction.  Ademption 
occurs  after  the  making  of  a  will,  and  applies  to  the  discharge, 
or  destruction  of  the  subject,  of  any  legacy  or  devise  in  the  tes- 
tator's lifetime,  and  is  not  limited  to  the  gift  by  the  parent  to 
the  descendant,  as  is  the  case  in  advancements.  Furthermore, 
when  the  parent  whose  will  makes  the  child  a  legatee  or  devisee, 
subsequently  makes  a  gift  to  that  child,  it  cannot  be  called  an 
advancement,  but  is  an  ademption  (or  satisfaction),  and  is  to 
be  governed  by  the  law  on  that  subject.  \Vlien  the  parent  prior 
to  making  a  will  has  made  to  a  child  a  gift  which  would  be  viewed 
as  an  advancement,  and  subsequently  leaves  a  legacy,  without 
further  explanation,  to  that  child,  it  is  evident  that  he  has  de- 
stroyed the  character  of  that  gift  as  an  advancement.  Of  course 
the  testator  may  in  his  will  direct  prior  gifts  to  the  child  to  be 
charged  against  him.  In  this  narrow  sense  only  can  an  advance- 
ment occur  in  connection  with  a  will ;  and  even  then  the  term, 
though  freely  employed,  is  technically  inaccurate  to  describe 
the  situation.  The  doctrine  of  advancements  rests  only  on 
statute;  the  doctrine  of  ademption,  however  much  modified 
by  statutes,  exists  independent  of  them. 

§  551.  Jurisdiction  over  Advancements  of  Realty  and  Personalty. 
—  Since  the  probate  court  has  generally  no  jurisdiction  over 
realty,  it  has  been  ruled  that,  in  making  distribution  of  the 
personalty,  that  court  must  ignore  advancements  consisting  of 
realty.  But  it  has  been  held,  on  the  other  hand,  that  taking 
account  of  the  value  of  realty  in  distributing  personalty  is  not 
exercising  jurisdiction  over  the  realty',  and  thus  advancements 
in  realty  have  been  taken  into  account  in  probate  distribution.^ 

§  552.  To  whom  the  Doctrine  of  Advancements  applies.  — 
Whether  any  persons  but  children  of  the  intestate  are  affected 
by  the  doctrine  of  advancements  depends,  of  course,  upon  the 
various  statutes.  Gifts  to  grandchildren  during  the  lifetime 
of  their  parents  are  not  treated  as  advancements  either  to  the 
grandchildren  or  to  their  parents,  nor  do  they  become  so  by 
the  death  of  their  parent  before  that  of  the  grandparent. 
Whether  gifts  to  parents  dying  before  the  intestate  constitute 
advancements  to  be  reckoned  against  the  grandchildren  of  the 
intestate  is  also  determined  by  statute  in  a  number  of  States. 
'  Elliott's  Estate,  98  Mo.  379,  384. 


478  THE   LAW   OF  DECEDENTS'   ESTATES.        [§§  553,  554 

A  sound  rule  seems  to  be,  that  in  all  cases  where  grandchildren 
take  per  stirpes,  or  in  right  of  their  parents,  they  take  subject  to 
ad\'ancements  to  the  parents;  but  not  so  when  they  take  per 
capita,  or  in  their  own  right.^ 

§  553.  What  constitutes  an  Advancement.  —  Wliether  a  gift 
or  conveyance  is  to  be  regarded  as  an  advancement  or  not,  is 
of  course  determined  by  the  intention  of  the  donor  at  the  time 
the  gift  is  made. 

Presumptions  of  what  the  intestate's  intention  was  are  raised 
by  the  law,  which,  however,  are  rebuttable  by  competent  evi- 
dence reasonably  definite.  As  between  a  loan,  a  gift,  and  an 
advancement,  the  presumption  is  in  favor  of  an  advancement, 
because  of  its  tendency  to  equalize.  The  presumption  that  a 
gift  was  intended  as  an  advancement  does  not  arise  w^hen  it  is 
repelled  by  the  nature  of  the  gift,  as  in  case  of  trifling  presents, 
no  account  thereof  being  kept;  or  money  expended  in  a  child's 
education,  whether  general  or  professional,  or  merely  for  amuse- 
ment or  pleasure. 

But  where  a  father  pays  a  child's  debt  without  taking  a  note 
or  security  therefor,  or  advances  him  money  for  that  purpose,  or 
buys  land  in  the  name  of,  or  makes  a  voluntary  conveyance  of 
land  to  the  child,  or  where  a  marriage  portion  is  given,  or  a  sum 
or  thing  to  be  used  for  profit  or  setting  up  in  business,  it  will 
be  held,  in  the  absence  of  contravening  evidence,  an  advance- 
ment. Where  a  parent  takes  a  note  or  other  security  for  the 
repajTuent  of  the  property  given,  with  or  without  interest,  it  is 
prima  facie  a  debt  and  not  an  advancement,  although  he  declare 
that  he  will  not  collect  the  same.  The  statutes  of  many  States 
expressly  provide  that  maintenance,  support,  or  money  given 
without  intending  it  as  a  settlement  in  life  is  not  an  advance- 
ment.^ A  gift,  although  it  must  be  made  in  the  donor's  lifetime, 
may  take  effect  at  the  donor's  death,  and  still  constitute  an 
advancement,  as,  for  instance,  the  gift  of  a  policy  of  insurance 
on  the  donor's  life. 

§  554.  Rights  of  Donees  in  Respect  of  Advancements.  —  The 
donor  can  so  alter  the  character  of  a  gift  or  conveyance  as  to 

*  The  statutory  provisions  in  the  various  States  as  to  the  parties  affected 
by  the  doctrine  are  collated  in  Woemer  on  Administration,  §  559. 

*  See  Woemer  on  Administration,  §  559. 


§  555]  OF  ADV.INCEMEXTS.  479 

enlarge  the  rights  and  privileges  of  the  recipient,  but  not  so  as 
to  restrict  them.  Hence  a  father  has  the  undoubted  right  to 
change  a  debt  owing  him  into  an  advancement  and  an  advance- 
ment into  a  gift;  but  not,  without  the  donee's  consent,  an  abso- 
lute gift  into  an  advancement,  nor,  since  it  is  irrevocable,  the 
advancement  into  a  debt. 

An  heir  may  release  his  expectancy  in  his  father's  estate  in 
consideration  of  a  present  grant,  and  such  agreement  will  be 
enforced,  so  that  he  cannot  bring  what  he  has  received  into 
hotchpot  and  get  more  in  the  distribution.^ 

There  are  cases  denying  the  validity  of  any  assignment  by  an 
heir  apparent  of  his  expected  inheritance  to  a  third  person  on 
the  ground  that  there  is  nothing  in  esse  on  which  the  conveyance 
can  operate;  ^  but  the  decided  weight  of  authority  in  England 
and  in  this  country  upholds  such  an  agreement  in  equit^'.  It  is, 
however,  a  transaction  suggestive  of  imposition  on  an  improvi- 
dent heir,  and  is  suspiciously  scrutinized  by  courts. 

§  555.  Computation  of  the  Value  of  Advancements.  —  When 
not  otherwise  directed  by  statute,  the  value  of  advancements  is 
reckoned  as  of  the  time  when  made,  unless  a  contrary  intention 
appears  from  the  terms  of  the  conveyance.  The  value  of  a 
gift  to  take  effect  in  the  future  is  to  be  computed  from  the  time 
when  it  is  completed  by  enjoyment  in  the  donee.  Thus  where 
the  advancement  consists  of  a  life  insurance  policy  taken  out 
for  the  benefit  of  a  son,  he  should  be  charged  with  the 
net  proceeds  paid  to  him  on  the  policy  after  the  father's 
death. 

Owing  to  the  nature  of  advancements,  which  implies  that  the 
gift  is  an  irrevocable  one,  and  that  therefore  all  loss  or  profit 
thereon  accruing  betw^een  the  time  of  the  gift  and  the  donor's 
death  must  belong  to  the  donee,  he  is  not  accountable  for  in- 
terest on  nor  for  the  increase  of  the  advancement,  unless  ex- 
pressly given  on  such  terms;  but  this  rule  does  not  apply  after 
the  intestate's  death. 

In  a  few  States  statutes  provide  other  rules  as  to  the  value  of 
advancements.^ 

'  Simon's  Estate,  158  Mich.  256. 

2  McCall  V.  Hampton,  98  Ky.  166. 

'  See  Woemer  on  Administration,  §  559. 


480  THE   LAW   OF  decedents'   ESTATES.  [§  556 

§  556.  How  the  Existence  of  Advancements  may  be  shown.  — 
Unless  inhibited  by  statute,  the  declarations  of  the  grantor  at 
the  time  of  making,  and  the  admissions  of  the  donee  at  and 
after  receiving  the  donation,  are  competent  evidence  to  show 
whether  an  advancement  was  intended  or  not.  It  is  held  proper 
to  prove  all  facts  and  circumstances  tending  to  show  the  donor's 
intention,  or  from  which  it  might  be  inferred ;  such,  for  instance, 
as  the  amount  and  value  of  the  property  conveyed  as  compared 
to  the  whole  estate,  the  number  of  children,  and  whether  ad- 
vancements have  been  made  to  other  children. 

Book  entries  made  by  the  donor  at  the  time  stand  as  part  of 
the  transaction;  but  entries  made  by  him  subsequently,  like 
other  subsequent  declarations  of  the  donor,  seem  only  admissible 
when  against  his  interest.  Such  subsequent  declarations  of  the 
donor  have  been  rejected  when  offered  to  prove  an  advance- 
ment, and  have  been  received  to  prove  the  gift  absolute,  the 
latter  being  against  the  donor's  interest.^ 

1  Gunn  V.  Thruston,  130  Mo.  339. 


§  557]  OF  DECREE   OR   ORDER  OF  DISTRIBUTION.  481 


CHAPTER  LXL 

OF  THE  DECREE  OR  ORDER  OF  DISTRIBUTION. 

§  557.  Refunding  Bonds.  —  In  theory  there  should  be  no  dis- 
tribution until  it  is  absolutely  certain  that  sufficient  funds  are 
set  aside  for  all  possible  creditors.  That  certainty  cannot  exist 
until  the  time  for  proving  claims  has  expired.  On  the  other 
hand,  the  retention  of  funds  on  the  mere  possibility  of  further 
creditors  seems  onerous  and  inconvenient. 

The  English  Statute  of  Distributions  and  the  statutes  of  most 
of  the  United  States  enable  distribution  to  be  made  upon  the 
execution  by  the  distributees  of  refunding  bonds,  with  sufficient 
sureties,  conditioned  to  refund  to  the  administrator  so  much  of 
the  assets  received  as  may  be  necessary  to  pay  debts  and  costs 
lawfully  proved  against  the  estate.  The  same  principle  is  ap- 
plicable to  the  payment  of  legacies. 

In  most  States  the  language  of  the  statute  requires  the  bond 
only  where  distribution  is  desired  before  the  time  limited  for 
the  presentation  of  creditors'  claims  has  expired,  or  before  final 
settlement  is  made,  while  in  a  few  States  refunding  bonds  are 
seemingly  required  in  every  case  of  payment  of  a  legacy. 

In  cases  where  there  is  no  statutory  provision  for  a  refund- 
ing bond,  or  where  there  is  such  provision  and  it  is  not  observed, 
the  weight  of  authority  seems  to  be  that  the  executor  or  admin- 
istrator cannot  recover  from  the  distributee  or  legatee  a  pay- 
ment voluntarily  made,  unless  there  was  fraud,  or  mistake  as 
to  fact.  When  the  law  provides  for  a  refunding  bond,  and  the 
administrator  fails  to  require  it,  the  omission  is  held  to  bar  the 
executor  or  administrator  from  his  remedy  for  contribution 
or  reimbursement,  unless  the  deficiency  arose  from  unexpected 
occurrences,  or  by  debts  and  claims  not  known  at  the  time; 
it  has  been  held  that  a  mistake  as  to  the  value  of  the  assets  is 
not  a  sufficient  equity  to  make  the  legatee  or  distributee  liable 
to  refund. 


482  THE   LAW   OF  DECEDEXTS'   ESTATES.        [§§  55S,  559 

§  658.  Parties  to  the  Order  of  Distribution.  Its  Conclusiveness. 
—  It  is  the  duty  of  probate  courts  in  most  States  to  order  the 
distribution  of  the  residue  found,  on  final  accounting,  to  re- 
main in  the  hands  of  the  executor  or  administrator,  after  pay- 
ment of  all  debts  and  expenses  of  administration,  to  those  who 
may  be  entitled  thereto,  provided  that  all  parties  interested 
had  notice  of  such  final  accounting.  The  principle,  that  every 
party  entitled  to  distribution  must  necessarily  be  before  the 
court  when  distribution  is  decreed  in  equity,  or  have  the  op- 
portunity to  be  present,  is  equally  applicable  in  probate  courts. 
Wlien  the  statutory  provisions  are  complied  with,  the  distribu- 
tion is  said  to  partake  of  the  nature  of  a  proceeding  in  rem,  and 
is  conclusive  upon  all  persons  having  any  interest  in  the  estate, 
whether  appearing  or  not,  and  whether  under  disability  or  not, 
or  whether  then  in  being  or  not. 

The  appointment  of  a  guardian  ad  litem  for  an  infant  is  neces- 
sary only  when  the  statute  requires  it.  But  when  a  distributee 
dies  before  the  order,  his  personal  representative  is  a  necessary 
party. 

Actual  notice  is  not,  generally,  required  to  be  given  by  the 
administrator  of  the  presentation  of  the  final  account;  it  is 
sufiicient  if  notice  be  given  in  the  mode  pointed  out  by  statute. 

^^^lere  action  is  taken  by  a  legatee  or  distributee  against  the 
executor  or  administrator  to  compel  distribution,  not  only  the 
executor  or  administrator  against  whom  the  proceeding  is  di- 
rected, but  all  other  parties  who  may  be  affected  by  the  decree 
or  judgment  to  be  rendered  should  be  parties,  either  as  plain- 
tiffs or  defendants. 

§  559.  Nature  and  Scope  of  the  Decree.  —  Since  the  order  or 
decree  of  distribution  is  the  judicial  ascertainment  of  the  right 
of  the  next  of  kin  or  legatees  to  their  respective  shares  in  the 
estate  under  administration  and  as  such  a  conclusive  judgment, 
it  is  obvious  that  it  must  set  out  the  name  of  each  person  en- 
titled, and  also  the  amount,  sum,  or  specific  thing  due  to  each. 

"\Miere  the  estate  consists  of  articles  of  different  kinds  and 
values,  as  of  bonds,  notes,  stocks,  or  choses  in  action,  of  which 
some  are  good  and  others  doubtful  or  desperate,  so  that  a  di- 
vision cannot  be  effected  giving  each  distributee  his  equal  por- 
tion of  the  whole  estate,  it  is  sometimes  necessary  to  order 


§  560]  OF  DECREE   OR   ORDER   OF  DISTRIBUTION.  483 

the  assets  to  be  sold,  so  that  the  proceeds  of  the  sale  may  be 
distributed  according  to  the  rights  of  the  parties  entitled,  unless 
the  parties  are  willing  and  competent  to  agree  upon  a  division. 
If  the  order  of  distribution  is  made  upon  the  final  settlement 
of  the  administration,  and  no  unsettled  claims  against  the  estate 
or  contingent  liability  of  any  kind  exist,  the  order  should  extend 
to  and  finally  dispose  of  all  the  assets  found  to  be  in  the  hands 
of  the  executor  or  administrator;  it  should  not  be  made  con- 
tingent upon  the  establishment  at  some  future  time  of  certain 
conditions  which  are  guarded  against  by  certain  provisos  in 
the  decree.  The  executor  must  retain  a  sufficiency  of  the  estate 
to  pay  a  legacy  which  is  not  payable  until  the  legatee's  majority, 
or  to  yield  a  sufficient  annuity  until  the  annuitant's  death; 
but  the  surplus  income  of  the  property  so  retained  above  the 
amount  of  the  annuity  may  be  distributed. 

To  authorize  a  decree  of  distribution  there  must  be  proof 
satisfying  the  court  that  the  parties  applying  therefor  are  re- 
lated to  the  intestate  in  the  degree  of  consanguinity  entitling 
them  to  distribution.  This  involves  that  proof  must  be  made, 
not  only  that  they  are  next  of  kin  under  the  statute,  but  also 
that  there  are  no  other  next  of  kin  in  the  same  degree;  otherwise 
it  will  be  impossible  to  determine  the  amount  to  which  each 
may  be  entitled. 

It  has  been  held  that  where  the  right  to  administer  is  con- 
tested on  the  application  for  letters,  the  sole  issue  being  the 
degree  of  relationship  of  the  parties  to  the  decedent,  the  deter- 
mination of  the  court  as  to  pedigree  in  such  contest  is  conclu- 
sive upon  the  parties  in  the  subequent  distribution  of  the  estate; 
but  such  decree  does  not  affect  parties  not  cited  who  did  not 
appear  on  the  application  for  letters. 

§  560.  Rights  of  Assignees  of  Distributees.  —  It  has  been 
mentioned,  in  discussing  the  subject  of  jurisdiction,  that  pro- 
bate courts  have  not  the  power  to  adjudicate  upon  the  validity 
of  an  assignment  by  a  legatee  or  distributee  of  his  interest  in 
the  estate,  unless  such  power  is  expressly  conferred  by  statute. 
But  where  such  power  is  vested  in  these  coiui;s,  their  judgments 
are  conclusive  upon  all  parties  thereto;  hence,  an  order  to  pay 
a  legacy  to  an  assignee  concludes  the  rights  of  an  attaching 
creditor  against  the  assignor.     But  whether  the  matter  arise 


484  THE   L\W  OF  decedents'   ESTATES.        [§§561,  562 

in  probate  court  (if  the  statute  gives  it  jurisdiction),  or  in  other 
tribunals,  as  will  be  the  case  in  most  States,  since  the  assignee 
can  have  no  greater  right  in  a  legacy  or  distributive  share  than 
the  assignor  possessed,  it  is  ob\'ious  that  any  right  of  set-off 
wliich  existed  against  the  assignor  is  good  against  the  assignee. 

§  561.  Set-off  to  Legacies  and  Distributive  Shares.  —  The  in- 
debtedness of  a  legatee  or  distributee  constitutes  assets  of  the 
estate,  which  it  is  the  executor's  or  administrator's  dut>'  to  col- 
lect for  the  benefit  of  creditors,  legatees,  and  distributees. 
Hence  such  indebtedness  may  be  deducted  from  any  legacy  or 
distributive  share  of  the  dpbtor. 

The  right  to  deduct  exists  whether  the  legatee  or  distributee 
was  indebted  to  the  deceased  before  his  death,  or  contracted  a 
liability'  to  the  estate  thereafter.  But  a  debt  due  the  adminis- 
trator personally  cannot  be  set  off.  It  is  held  that  a  son  is  not 
entitled  to  recover  his  distributive  share  of  his  father's  estate, 
where  the  father  was  surety  for  him  in  an  amount  greater 
than  the  value  of  said  share,  although  the  executor  did  not  pay 
the  surety  debt  until  after  the  action  brought  by  the  son.  But 
whether  the  administrator  has  a  superior  right  to  demand 
payment  of  a  debt  due  to  the  intestate  from  the  insolvent  heir 
out  of  the  lands  such  heir  inherits,  as  against  the  grantee  or 
creditor  of  such  heir,  has  been  variously  decided.  The  question 
turns  largely  on  the  extent  to  which  realty  comes  into  the  settle- 
ment under  the  statutory  systems  of  the  various  States,  and 
cannot  be  further  followed  within  the  limits  of  this  treatise. 

The  Statute  of  Limitations  does  not  operate  the  extinguish- 
ment of  a  debt,  but  bars  the  remedy  only;  hence  such  debts  may 
be  deducted  from,  or  set  off  against,  legacies  or  distributive 
shares,  notwithstanding  the  efflux  of  the  statutory  period  of 
limitation.  But  this  doctrine,  well  established  in  English  courts 
of  chancery  and  generally  in  this  country,  is  repudiated  in 
several  States.^ 

§  562.  Distribution  of  Personalty  by  Law  of  Domicile.  —  The 
law  of  the  domicile  governs  the  distribution  of  personalty, 
whether  testate  or  intestate.  But  as  this  principle  can  be  en- 
forced by  comity  only,  it  must  yield  to  the  established  policy  of 
the  state  of  the  fonma,  so  that,  when  the  law  of  the  domicile  is 
1  See  the  subject  discussed  in  Woemer,  §  564. 


§§  563-566]         OF  DECREE   OR   ORDER   OF  DISTRIBUTION.  485 

repugnant  to  such  policy,  it  will  not  be  recognized  in  the  dis- 
tribution of  the  ancillary  estate.^ 

§  563.  The  Widow's  Rights  not  affected  by  Remarriage  or  Prior 
Gift.  —  The  right  of  the  widow  to  a  share  in  her  deceased  hus- 
band's estate  is  not  affected  by  her  subsequent  marriage  before 
she  actually  receives  such  share;  and,  on  the  other  hand,  her 
share  is  determined  by  the  amount  of  property  in  the  husband's 
possession  at  the  time  of  his  death,  so  as  to  exclude  her  from 
any  interest  in  advancements  to  his  children  made  during  his 
Hfetime,  and  to  relieve  her  from  accountability  for  property 
received  by  her  from  her  husband  before  his  death. 

§  564.  The  Share  of  a  Deceased  Distributee  goes  to  his  Per- 
sonal Representative.  —  It  follows  from  the  doctrine  of  the 
vesting  of  the  distributee's  interest  at  the  time  of  the  intestate's 
death,  that  if  a  person  entitled  to  distribution  die  before  dis- 
tribution is  made,  or  his  legacy  paid  to  him,  his  share  will  go 
to  his  legal  representative,  and  not  to  those  who,  by  reason  of 
his  death,  have  become  the  next  of  kin  of  the  intestate. 

§  565.  Rights  of  Posthumous  and  Pretermitted  Children.  — 
Posthumous  children,  as  stated  in  an  earlier  chapter,  take 
equally  with  those  born  during  the  ancestor's  lifetime  and  sur- 
viving him.  Pretermitted  children,  by  virtue  of  the  statutes 
of  most  States,  succeed  to  the  same  interest  in  the  father's 
estate  as  if  he  had  died  intestate.  But  since  the  will  is  not  re- 
voked or  annulled  by  the  omission  to  pro\dde  for  the  testator's 
children,  but  remains  in  force  in  every  respect  save  as  affected 
by  the  rights  of  these,  provision  is  generally  made  charging  each 
devisee  and  legatee  with  a  proportional  contribution  to  make 
up  the  necessary  portions.  As  the  rights  of  the  pretermitted 
child  stand  as  if  the  ancestor  had  died  intestate,  they  can  be 
enforced  for  their  proper  portions  against  all  persons  claiming 
through  or  under  devisees  or  legatees,  even  though  such  persons 
had  no  notice  of  the  claim  of  such  child;  as,  for  instance,  against 
the  purchasers  of  land  sold  under  a  power  in  the  will  for  the 
benefit  of  beneficiaries. 

§  566.    Distribution  without  Administration.  —  The   doctrine 
of  the  common  law  whereby  personal  property  devolves  to  the 
executor  or  administrator,  and  not  to  the  distributee  or  legatee, 
1  See  Woemer,  §  565;  Despard  v.  Churchill,  53  N.  Y.  192. 


486  THE  hAW  OF  DECEDEXTS'   ESTATES.        [§§  567,  568 

involves  the  principle,  that  no  one  can  obtain  a  legal  title  to  the 
property  of  a  deceased  person  except  through  an  executor  or 
administrator,  and  the  consequent  necessity'  of  administration 
of  estates  has  heretofore  been  considered.  It  may  be  well  to 
repeat,  however,  an  exception  to  this  rule,  viz.,  when  the  dis- 
tributees, being  sui  juris,  by  agreement  divide  the  estate  among 
themselves  without  administration,  it  is  good  as  between  them- 
selves; but  of  course  of  no  force  as  against  any  one  else.  The 
parties  to  the  agreement  are  bound  by  estoppel.^  If  such  dis- 
tribution is  made  without  satisfying  a  debt  due  by  the  deceased, 
the  creditor  may  of  course  compel  administration,  or,  if  that  is 
impracticable  for  any  reason,  he  may  sue  for  the  debt  as  well 
as  foreclose  any  lien  he  may  have,  making  the  heirs  defendants, 
without  hJmself  administering. 

§  567.  Partial  and  Premature  Distribution.  —  When  not  en- 
dangering the  rights  of  creditors  or  of  the  administrator  the 
court  may  order  a  partial  distribution  of  the  estate,  on  the  ap- 
plication of  a  legatee  or  distributee,  before  final  settlement, 
usually  on  giving  a  refunding  bond  if  the  time  to  prove  debts 
has  not  expired,  and  on  notice  to  all  parties  interested. 

Where  administration  of  the  estate  is  had,  the  administrator 
will  be  protected  in  paying  over  to  a  legatee  or  distributee  his 
share  of  the  estate,  if  all  the  debts  allowed  against  the  estate 
have  been  paid,  and  the  time  has  expired  within  which  claims 
may  be  presented  for  allowance,  except  upon  special  application 
to  the  probate  court,  although  there  has  been  no  order  of  dis- 
tribution or  final  settlement.  The  executor  may  retain  out  of 
each  legacy  which  he  is  ordered  to  pay  the  sums  already  paid 
to  each  legatee  respectively.  The  right  of  the  administrator  or 
executor  to  recover  from  a  distributee  or  legatee  an  unauthor- 
ized over-pajTuent  is  discussed  ante,  §  557. 

§  568.  Partition  of  Real  Estate  in  Courts  of  Probate.  —  Since 
the  probate  court  possesses  only  statutory  powers  and  such  as 
are  necessarily  incidental  thereto,  and  since  the  real  estate  of 
the  deceased  in  almost  all  States  goes  primarily  to  the  heirs  or 
dexasees,  subject  to  jurisdiction  of  probate  court  only  for  special 
purposes  {e.  g.,  the  payment  of  debts),  partition  of  the  realty 

*  Waterhouse  v.  Churchill,  30  Colo.  415.  See  as  to  the  necessity  of 
administration  and  the  exceptions,  ante,  §§  184-185. 


§  568]  OF  DECREE   OR  ORDER  OF  DISTRIBUTION.  4S7 

of  the  deceased  is  not  within  the  jurisdiction  of  the  probate 
court  without  express  statutory  authority.  In  a  large  number 
of  States  the  probate  court  has  by  statute  jurisdiction  of  parti- 
tion of  realty^  between  heirs  and  devisees.  Where  such  power 
is  given  "  the  connection  between  the  administration,  settlement, 
distribution,  and  partition  of  an  estate  is  such,  that  the  power 
to  make  partition  may  be  justly  regarded  as  ancillary  to  the 
power  to  distribute  such  estate,  and,  therefore,  not  alien  to  the 
probate  system  as  it  has  long  existed  and  now  exists  in  manv 
States."  1 

The  jurisdiction  of  the  probate  court,  where  it  is  given  at  all, 
is  limited  to  the  interest  in  the  realty  derived  from  the  deceased; 
and  even  within  these  limits  "that  court  has  no  jurisdiction 
of  the  question  of  the  title  of  the  land,  but  only  of  the  mode  of 
partition,  assuming  that  the  title  existed  in  the  intestate  or 
testator.  The  partition,  so  far  as  the  court  have  jurisdiction,  is 
conclusive;  that  is,  to  the  matter  of  division  among  the  heirs  or 
devisees,  of  whatever  estate  exists,  which  they  have  a  right  to 
have  thus  divided."  "But  beyond  that  the  decree  has  no 
effect.  .  .  .  The  question  of  estate  and  title  is  assumed,  and  the 
proceeding  is  for  the  purpose  of  dividing  whatever  estate  or  title 
exists.  If  none  finally  exists,  the  proceeding  goes  for  nothing. 
...  If  the  assumed  title  fail,  the  effect  of  the  decree  fails  also."  ^ 
But  within  the  scope  of  the  power  conferred  upon  the  court 
the  partition  is  conclusive;  the  decree  is  as  conclusive  upon  the 
parties  to  the  proceeding  in  respect  of  the  matter  of  division 
among  the  heirs  as  the  judgment  or  decree  of  any  other  court. 
Contingent  remaindermen  or  persons  to  take  under  an  execu- 
tory devise,  who  may  come  into  being  at  a  future  time,  are 
bound  by  the  judgment  in  partition,  on  the  theory  of  being  vir- 
tually represented  by  the  parties  to  the  action,  in  whom  the 
present  estate  is  vested. 

As  a  general  rule  the  holder  of  a  life  interest  in  an  undivided 
part  of  the  estate  can  enforce  partition,  but  not  the  owner  of  a 
life  interest  in  the  whole  tract.  The  holder  of  the  estate  by  the 
courtesy  generally  cannot  ask  for  partition. 

WTiere  the  land  is  incapable  of  division  in  kind  without  detri- 

1  Robinson  v.  Fair,  128  U.  S.  53,  84. 

2  Grice  v.  Randall,  23  Vt.  329,  342. 


488  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  569 

ment  to  owners,  a  sale  of  the  whole,  and  division  of  the  proceeds 
is  usually  authorized.  So  too  the  statutes  in  many  States  rec- 
ognize the  doctrine  of  owelty,  whereunder  the  person  to  whom 
the  more  valuable  tract  is  assigned  stands  bound,  with  a  lien 
on  the  propertv',  to  the  person  taking  the  less  valuable  tract 
for  an  equalizing  amount.  But  in  probate  court  partitions  there 
must  always  be  statutory  authority  for  such  action. 

It  is  held  in  States  where  probate  courts  have  not  jurisdiction 
in  partition,  and  the  proceedings  are  brought  in  courts  of  gen- 
eral jurisdiction,  that  while  partitions  ought  not  to  be  ordered 
until  it  be  ascertained  that  the  personalty  is  sufficient  to  pay 
the  debts,  yet  the  action  may  be  begun  before  that  time;  it 
is^  only  necessary  that  the  entering  of  the  order  or  decree 
be  postponed  until  it  is  determined  whether  any  and,  if  so, 
what  part  of  the  land  be  required  for  the  payment  of  the 
debt. 

Advancements  to  the  heirs  are  to  be  charged  against  them  in 
partition  proceedings  as  part  of  their  respective  shares;  and  if 
they  have  not  been  adjudicated  by  the  probate  court  having 
jurisdiction  of  the  estate,  the  court  before  which  partition  is 
pending  may,  before  decreeing  partition,  require  the  parties  to 
account  for  their  advancements;  and  a  purchaser  from  an  heir 
stands  in  the  same  relation  to  the  estate  as  the  heir,  and  he 
may  show  advancements  to  the  other  heirs. 

§  569.  Enforcing  the  Order  to  pay  Legacies  and  Distributive 
Shares.  —  WTien  the  executor  has  assented  to  a  legacy  an  action 
at  law  lies  against  him.  Courts  of  equity  will  decree  distribution 
when  the  probate  court  is  without  power  to  grant  adequate  re- 
lief, and  will  even  do  so,  in  some  States  (as  we  have  seen  in 
discussing  the  question  of  the  necessity  of  administration,  ante, 
§  185),  without  previous  administration,  when  it  appears  that 
there  are  no  creditors.  The  executor  is  a  trustee  for  the  legatee, 
subject  to  the  pajinent  of  debts.  Where  debts  do  not  exist, 
equity  in  these  States  assumes  jurisdiction  to  enforce  the  lega- 
tee's right. 

An  administrator  cannot  at  common  law  plead  the  Statute  of 
Limitations  in  bar  of  a  suit  against  him  by  the  next  of  kin  for 
their  distributive  shares.  But  this  rule  is  changed  in  many 
States;  and  where  that  is  the  case,  courts  of  equity  will  follow 


§§  570,  571]        OF  DECREE   OR   ORDER   OF  DISTRIBUTION.  489 

the  rule  at  law,  and  hold  the  remedy  barred  in  analogy  with  the 
Statute  of  Limitations. 

§  570.  Enforcement  of  Distribution  under  American  Statutes.  — 
The  principles  laid  down  in  the  foregoing  sections  are  applicable 
to  the  older  system  of  administration;  but  are  greatly  changed 
by  the  statutes,  existing  in  the  States,  constituting  what  has 
repeatedly  been  called  the  American  system.  Under  such  stat- 
utes, the  question  of  the  executor's  or  administrator's  liability 
is  mostly  determined  by  the  probate  court,  whose  order  of  dis- 
tribution or  payment  of  legacies  now  takes  the  place  of  the 
executor's  assent,  and  of  the  corresponding  investiture  of  title 
in  the  distributee,  and  changes  the  character  of  the  liability  of 
executors  and  administrators  from  an  official  to  a  personal  one, 
and  the  beneficial  or  inchoate  title  of  the  legatee  or  distributee 
becomes  legal  or  absolute,  enabling  him  to  recover,  by  suit 
against  debtors  of  the  deceased  in  his  own  name,  upon  any 
cause  of  action  assigned  or  distributed  to  him.  Hence  in  these 
States  it  is  generally  held  that  the  trust  relation  of  the  executor 
or  administrator  ceases,  and  the  Statute  of  Limitations  for  the 
recovery  of  a  legacy  or  distributive  share  begins  to  run  from 
the  time  of  final  settlement  or  order  to  pay  legatees  and  distrib- 
utees; and  that  thereafter  the  representative  is  subject  to  gar- 
nishment by  a  creditor  of  the  legatee  or  distributee. 

Additional  remedies  of  various  kinds  are  provided  by  the 
statutes  of  several  States.  In  a  number  of  States  it  is  provided 
that,  after  order  of  distribution  and  demand  made  upon  the 
executor  or  administrator  and  failure  to  pay  over,  execution 
shall  issue  out  of  the  probate  court  against  the  delinquent. 

A  most  summary  remedy  is  given  to  legatees  and  distributees 
in  California,  Colorado,  and  Illinois,  where  the  refusal  to  pay 
a  legacy  or  distributive  share  after  the  order  of  the  probate 
court  to  do  so  is  treated  as  contempt  of  court,  and  may  be 
punished  by  imprisomnent  of  the  delinquent  executor  or  ad- 
ministrator until  he  comply  with  such  order,  and  it  has  been 
so  held  in  New  York.^ 

§  571.  Disposition  of  Unclaimed  Legacies  and  Distributive 
Shares.  —  Legacies  and  distributive  shares  due  to  persons  who, 

^  For  further  details  as  to  statutory  remedies,  see  Wocrner  on  Admin- 
istration, §  569. 


490  THE   LAW   OF  DECEDENTS'   ESTATES.  [§  571 

for  any  reason,  do  not  call  for  them,  are,  under  statutory  pro- 
visions of  several  of  the  States,  to  be  invested  or  paid  into  the 
State  treasury  until  called  for. 

In  some  States  the  administrator  invests  the  sums  for  a  time, 
ultimately  also  paying  into  the  public  treasury.  The  money  so 
paid  into  the  State  treasury  may  be  withdrawn  by  the  legatee 
on  proper  proof,  but  without  interest,  and  on  payment  of  all 
costs.^ 

When  no  claim  is  ultimately  made,  the  doctrine  of  escheat 
applies,  discussed  ante,  §§  124-131. 

*  For  the  statutory  law,  see  Woemer  on  Administration,  §  569. 


§§  572,  573]     STATUS   OF  EXECUTORS  AFTER  SETTLEMENT.      491 


PART  II. 
OF  THE  ESTATE  AFTER  OFFICIAL  ADMINISTRATION. 

CHAPTER  LXII. 

OF  THE  STATUS  OF  EXECUTORS  AND  ADMINISTRATORS  AFTER 
FINAL  SETTLEMENT. 

§  672.  Res  Judicata  as  a  Defence  after  Final  Settlement.  —  In 
England  a  court  of  equity  might  decree  accounting  notwith- 
standing a  previous  accounting  and  distribution  in  the  spiritual 
court,  and  so  a  new  accounting  became  necessary  whenever  the 
executor  was  obliged  to  plead  plene  administravit  in  a  suit  at 
law.  But  in  the  United  States  the  tribunals  intrusted  with 
jurisdiction  over  the  estates  of  deceased  persons  are  clothed 
with  the  powers  and  dignity  of  courts,  whose  judgments  and 
decrees  are  as  binding  and  conclusive  as  those  of  other  courts. 
Hence  the  plea  of  res  judicata  affords  a  complete  defence  to 
executors  and  administrators  against  the  demands  growing  out 
of  any  matter  of  administration,  in  so  far  as  the  probate  court 
has  lawfully  adjudicated  thereon. 

And  it  is  equally  obvious  that  that  which  has  not  been  tried 
cannot  have  been  adjudicated;  the  final  settlement  of  an  ex- 
ecutor or  administrator  can  therefore  be  conclusive  or  binding 
upon  nothing  which  was  not  either  directly  before  the  court,  or 
necessarily  involved  in  that  which  was  before  the  court  and  ad- 
judicated. That  which  is  not  within  the  scope  of  the  issues 
presented  cannot  be  concluded  by  the  judgment. 

§  573.  Duration  of  the  Office  at  Con:inion  Law.  —  At  common 
law  the  office  of  executor  or  administrator  does  not  terminate 
during  his  lifetime,  unless  he  be  removed  by  a  court  of  com- 
petent jurisdiction.  Without  statutory  authorization  to  that 
effect,  probate  courts  have  no  power  to  accept  the  resignation 
of  an  executor  or  administrator,  and  a  discharge  or  removal 


492  THE  LAW  OF  DECEDENTS'   ESTATES.        [§§  574,  575 

for  any  cause  or  in  any  manner  except  as  pointed  out  by  statute 
is  simply  void.  It  also  follows  that,  unless  discharged  in  accord- 
ance with  some  statutory  provision,  neither  the  authority  nor 
the  liability  of  executors  or  administrators  is  at  all  affected  by 
the  settlement  of  a  final  administration  account,  except  as  it 
may  protect  them  under  the  doctrine  of  res  judicata. 

If,  therefore,  property  of  the  deceased  is  discovered  after  the 
final  settlement,  the  existence  of  which  was  then  unknown  and 
could  not  for  that  reason  be  administered,  the  administrator 
and  his  sureties  will  be  liable  therefor,  and  subject  to  the  same 
proceedings  against  them  as  in  respect  of  the  property  coming 
originally  to  the  hands  of  the  administrator.  So  their  functions 
in  other  respects  remain  unextinguished  after  final  settlement, 
and  an  order  of  discharge  made  by  the  probate  court  can  be 
regarded  as  a  discharge  only  so  far  as  the  particular  matters 
appearing  upon  the  face  of  the  account  are  concerned. 

§  574.  The  American  Theory  of  the  Duration  of  the  Office.  — 
Courts,  in  view  of  the  great  desirability  of  relieving  these  officers 
from  further  harassment,  their  sureties  from  the  anxiety  attend- 
ing continuous  liability,  and  distributees  and  legatees,  heirs,  and 
de\4sees  from  the  uncertainty  of  their  tenure  of  the  property 
descended  to  them,  have  gone  to  the  extent  of  declaring  the 
executor  or  administrator  functiis  officio  by  virtue  of  his  final 
settlement,  or  of  an  order  of  discharge  by  the  probate  court,  in 
the  absence  of  a  statute  authorizing  such  order.  However  con- 
sistent such  ruling  may  be  with  the  spirit  of  our  system  of  ad- 
ministration, it  is  not  quite  clear  that  either  a  final  settlement 
without  a  discharge  by  the  court,  or  an  order  of  discharge  not 
authorized  by  statute,  can  relieve  an  executor  or  administrator 
of  the  duty  imposed  upon  him  by  law  of  collecting  assets  dis- 
covered after  final  settlement,  and  administering  them  by  pay- 
ment to  creditors,  legatees,  or  distributees;  or  protect  him 
against  liability  for  assets  concealed  by  him  and  not  accounted 
for  in  his  inventory  or  settlement. 

§  575.  Statutory  Provisions  for  the  Discharge  of  Executors  and 
Administrators.  —  Statutes  provide  for  the  removal  and  resig- 
nation of  executors  and  administrators,  as  discussed  ante, 
§  258.  In  such  cases  an  administrator  de  bonis  nan  continues 
the  administration. 


§  575]         STATUS   OF  EXECUTORS  AFTER  SETTLEMENT.  493 

But  when  a  final  settlement  is  made  the  executor  or  adminis- 
trator is  not  necessarily  discharged.  He  is  responsible  for  assets 
subsequently  discovered.  As  the  final  settlement  did  not  in- 
volve such  items,  neither  the  plea  of  plene  administravit  nor 
that  of  res  judicata  can  afford  protection  as  to  such  items  against 
creditors  or  distributees.  To  put  an  end  to  this  indefinite  pos- 
sibility of  liability  on  the  part  of  the  administrator  or  executor 
(and  also  of  the  sureties)  it  is  enacted  in  a  number  of  States^  that 
proof  of  full  administration  with  satisfactory  vouchers  showing 
pajTiient  and  delivery  to  those  entitled  of  all  the  property  of 
the  estate,  and  performance  of  all  acts  lawfully  required  of  him, 
entitles  the  executor  or  administrator  to  a  full  discharge  from 
all  liabilities  thereafter.  In  some  of  the  States  proof  must  be 
made,  in  addition  to  proof  of  the  facts  above  mentioned,  of 
notice  given  of  the  intended  application  for  discharge.  It  is 
held  under  these  statutes,  that  the  dismission  by  judgment  of 
the  court  of  ordinary  is  a  complete  bar,  both  at  law  and  in 
equity,  unless  impeached  for  fraud,  the  legislature  announcing 
that  the  discharge  is  a  release.  Under  such  statutes  discharging 
an  administrator,  an  administrator  de  bonis  non  must  be  ap- 
pointed, if  assets  of  the  estate  are  subsequently  discovered. 

In  a  number  of  other  States  there  are  statutes  defining  the 
extent  of  the  protection  which  the  judgment  on  the  final  set- 
tlement affords  the  executor  or  administrator;  but  they  are  to 
be  distinguished  from  the  statutes  first  mentioned  in  that  they 
do  not  result  in  the  discharge  of  the  personal  representative. 
They  do  not  make  him  functus  officio. 

1  See  Woemer  on  Administration,  §  573. 


494  THE   LAW  OF  DECEDENTS'   ESTATES.         [§§  576-579 


CHAPTER  LXIII. 

OF  THE   LIABILITY   OF   THE   ESTATE   AFTER  FINAL  SETTLEMENT. 

§  576.  Liability  of  Legatees  and  Distributees  after  Settlement 
to  Creditors  of  Deceased  at  Common  Law.  —  Since  all  personal 
property  descends,  not  to  the  next  of  kin,  distributee,  or  legatee, 
but  to  the  executor  or  administrator,  the  creditor  is  confined 
to  his  remedy  against  the  latter;  from  which  it  follows  that, 
without  some  statutory  provision  in  the  State  under  whose 
laws  the  property  descends,  neither  legatees  nor  distributees 
can  be  made  liable  for  the  debts  of  the  testator  or  intestate. 

§  577.  Liability  of  Heir  and  Devisee  at  Common  Law.  —  At 
common  law  the  heir  was  liable  for  the  debts  by  specialty  of  his 
ancestor;  he  was  bound  to  satisfy  them  to  the  extent  of  the  value 
of  the  land  descended  to  him.  But  if  he  had  aliened  the  land 
before  action  or  proceeding  against  him  for  the  ancestor's  debt, 
the  creditor  had  no  remedy.  The  heir  was  not  liable  for  other 
debts.  Devisees  are  not  liable  at  the  common  law  for  either 
specialty  or  simple  debts.  But  of  course  the  heir  and  devisee 
take  realty  subject  to  charges  thereon,  e.  g.,  mortgages. 

§  578.  Liability  of  Beneficiaries  of  Estate  under  Statutes.  —  The 
law  of  all  States  subjecting  realty  to  debts  in  the  course  of 
administration,  heretofore  discussed,  has  substantially  changed 
the  position  of  heir  and  devisee  with  reference  to  rights  of  cred- 
itors of  the  ancestor  or  testator. 

In  addition,  the  law  ever^-where  provides  a  remedy  for  such 
creditors  of  the  deceased  as  had  no  standing  during  the  admin- 
istration, against  heirs,  devisees,  distributees  and  legatees. 
The  statutory  changes  were  brought  about  in  England  too  late 
to  be  part  of  our  American  common  law,  and  so  do  not  affect 
our  statutes. 

§  579.  What  Creditors  can  claim  after  Final  Settlement.  —  If 
the  creditor  could  have  presented  his  claim  in  the  course  of 


§§  580,  581]       LIABILITY  OF  ESTATE  AFTER  SETTLEJVIENT.        495 

administration  of  the  estate,  he  cannot  avail  himself  of  these 
statutes.  Only  holders  of  claims  which  are  not  barred  by  the 
statute  of  Non-claim  {e.  g.,  contingent  claims  where  the  cause 
of  action  accrued  too  late  for  presentation  within  the  time  fixed 
by  the  Statute  of  Non-claim,  in  the  administration)  can  be 
enforced  after  final  settlement  against  beneficiaries  of  the  estate. 
As  long  as  any  other  remedy  is  open,  these  statutes  cannot  be 
invoked. 

§  580.  Extent  of  Liability  of  the  Beneficiary  of  Deceased.  —  The 
recipient  of  property  of  a  deceased  person  by  descent  or  dis- 
tribution, or  gift  from  the  testator,  is  self-evidently  never  liable 
for  more  than  he  has  received,  unless  he  has  unlawfully  inter- 
meddled, so  as  to  make  himself  liable  as  executor  de  son  tort. 
Interest  is  not  charged  on  that  value.  No  improvements  put 
on  the  land  by  the  heir  or  devisee  will  enter  into  the  valuation, 
nor  is  he  liable  for  rents  and  profits;  but  he  cannot,  on  his  side, 
claim  credit  for  repairs. 

§  581.  The  Creditor's  Form  of  Remedy  against  Beneficiaries  of 
Estate.  —  It  is  mostly  provided  by  statute,  that  where  the  heir 
or  devisee  has  aliened  his  share  of  the  property  descended  or  de- 
vised, he  becomes  personally  liable  to  the  ancestor's  creditor  to 
the  amount  of  its  value.  In  some  States  the  creditor's  action 
is  held  to  authorize  a  personal  judgment  against  the  heir  or 
devisee  only,  so  that  an  order  to  sell  the  specific  land  descended 
is  erroneous;  but  in  others,  the  judgment  is  directed  to  be  sat- 
isfied out  of  the  lands  descended,  if  they  have  not  been  aliened. 

A  purchaser  from  an  heir  or  devisee,  after  the  expiration  of 
the  time  during  which  the  real  estate  may  be  subjected  to  the 
pai^ment  of  the  debts  of  the  decedent  in  the  probate  court,  and 
before  suit  brought  by  a  creditor  against  the  heir,  obtains  a  title 
which  is  superior  to  the  right  of  the  creditor;  but  the  devisee 
himself,  by  accepting  the  devise,  makes  himself  personally  liable 
to  the  creditor  to  the  extent  of  the  value  of  the  land  devised. 

The  general  remedy  of  a  creditor,  whose  right  of  action  ac- 
crued after  the  time  in  which  claims  may  be  presented  against 
the  estate  while  under  administration,  is  by  bill  in  equity^  against 
the  recipients  of  property  from  a  solvent  estate,  for  contribution 
to  the  extent  of  the  estate  received  by  them;  but  whether  a 
creditor  must  proceed  against  all  jointly,  or  may  hold  each  sep- 


496  THE  LAW   OF  DECEDENTS'   ESTATES.  [§  581 

arately  for  his  proportion  of  the  debt,  or  hold  any  one  or  more 
of  them  liable  for  the  whole  of  the  debt,  not  exceeding  the 
amount  received  by  each,  so  as  to  compel  those  from  whom  he 
recovers  to  seek  contribution  from  the  other  heirs  or  distributees, 
is  held  differently  in  different  States.-' 

*  See  on  these  and  similar  points  Woemer  on  Administration,  §  579. 


INDEX. 


INDEX. 


IReferences  are  to  Sectional 

ABANDONMENT, 

as  affecting  homestead,  102. 

as  affecting  provisional  alimony,  90. 
ABATEMENT  OF  ACTIONS.    See  Revival  of  Actions;  Survival  op 

Actions. 
ABATEMENT  OF  LEGACIES.    See  Satisfaction  of  Legacies. 

ABSENTEES, 

administration  on  estates  of,  192. 

ACCOUNTING, 

between  surviving  partner  and  representative  of  deceased,  119. 
between  administrator  d.  b.  n.  and  predecessor,  173,  343,  344. 
in  ecclesiastical  courts,  and  in  equity,  498. 
modern  periodical  accounting,  499. 
passing  on  account  by  court,  500. 
jurisdiction  of  probate  courts  over,  501. 

See  Annual  Settlements    Final  Settlements. 
what  the  account  must  show,  507. 
inventory  as  foundation  of  account,  508. 
what  interest  chargeable,  509. 

debts  of  executor  and  administrator  to  be  charged,  510. 
when  rent  and  proceeds  of  realty  chargeable,  511. 

See  Expenses  of  Administration, 
allowance  for  widov/  and  children  518. 
payments  on  debts  as  credits,  520. 
payment  in  anything  but  cash,  521. 

credit  for  difference  between  actual  value  and  inventory,  522. 
interest  on  advances  as  credit,  523. 

See  Compensation  of  Executor  and  Administrator. 
by  co-executors  and  by  co-administrators,  534. 
for  unfinished  administration,  535. 
for  assets  received  in  foreign  jurisdiction,  536. 

ACCRETIONS, 
as  assets,  296. 

ACTIONS, 

by  and  against  surviving  partners,  113. 
for  injuries  resulting  in  death,  188. 

See  Survival  of  Actions. 


500  INDEX. 

[References  are  to  Sections] 

ACTIONS  —  Continued. 

duty  of  personal  representative  to  prosecute  and  defend,  311. 
See  Revfv'al  of  Actions. 
See  Claims  against  Estates  op  Deceased  Persons. 

ACCUMULATION   OF   INCOME.     See  Income. 

ADEMPTION, 

distinguished  from  satisfaction  of  legacies,  443. 

legacy  presumed  in  satisfaction  of  debt,  444. 

by  gift  to  child,  445. 

admissibility  of  parol  evidence  on  question,  446. 

statutory  provisions  affecting,  447. 

distinguished  from  advancement,  550. 
ADJOURNMENT   OF   SALE   OF   REALTY, 

when  permitted,  478. 
ADMINISTRATION, 

reasons  for  its  necessity,  184. 

circumstances  under  which  it  is  dispensed  with,  185. 

on  estates  of  living  persons,  191. 

on  estates  of  absentees,  192. 

on  estates  of  non-residents,  187,  229. 

validity  of  without  bond,  236. 

what  constitutes  at  common  law,  343,  535. 

under  modern  statutes,  344. 

distribution  by  consent  without  administration,  566. 
ADMINISTRATION   BOND, 

origin  of  law  requiring,  232. 

not  required  of  executors  at  common  law,  233. 

when  court  can  order  executor  to  give  bond,  234,  235. 

validity  of  administration  without  bond,  236. 

when  additional  bond  can  be  ordered,  237. 

ex  mero  motu  or  at  instance  of  interested  parties,  239. 

judgment  against  administrator,  as  evidence  against  the  sureties,  238. 

the  na  ure  of  liability  on  the  second  bond,  239. 

the  nature  of  liability  of  sureties,  238. 

formal  requisites,  242. 

amount  of  penalty,  243. 

joint  and  separate,  244. 

approval  and  custody,  245. 

liability  on  order  to  pay  debts,  402. 

ADMINISTRATOR, 

for  matters  common  to  Executors  and  Administrators,  see  that  title. 

distinguished  from  executor,  167. 

when  title  vests,  168. 

relates  back  to  death  of  intestate  for  certain  purposes,  169. 

for  special  administrators,  see  their  respective  titles. 

his  acts  before  grant  of  letters,  179. 

principles  governing  appointment,  218. 

the  husband's  right  to  appointment,  218,  219. 

the  widow's  right  to  appointment,  220. 

the  right  of  next  of  kin,  221. 


INDEX.  501 

[References  are  to  Sections] 

ADMINISTRATOR  —  Continued. 
the  right  of  creditors,  222. 
the  right  of  the  pubHc  administrator,  223. 
disqualifications,  excluding  from  appointment,  224. 
the  court's  discretion  in  appointing,  225. 
renunciation  of  right  to  administer,  226. 
result  of  renunciation,  227. 
appointment  of  administrator  with  limited  powers,  231. 

ADMINISTRATOR  AD  LITEM,  176. 
ADMINISTRATOR  DE  BONIS  NON, 

what  the  office  is,  173. 

who  entitled  to  appointment,  230. 

of  what  he  takes  charge  at  common  law,  343. 

of  what  under  modern  statutes,  344. 

how  far  bound  by  acts  of  predecessor,  343. 

successive  administrators  have  but  one  compensation,  529. 

accounting  with  predecessor,  535. 
ADMINISTRATOR   PENDENTE  LITE,  175. 
ADMINISTRATOR   WITH   THE   WILL  ANNEXED, 

what  the  office  is,  172,  228. 

who  entitled  to  such  letters,  228. 

ADMISSIONS, 

See  Declarations. 
by  beneficiaries  in  will  contests,  208. 
by  personal  representative  as  binding  estate,  369. 
by  personal  representative  do  not  stop  statute  of  non-claim,  392. 
by  personal  representative  as  against  statute  of  limitations,  392. 

ADOPTED   CHILDREN, 

inheritance  by,  from,  and  through,  73. 

ADVANCEMENTS, 

the  term  defined,  549. 

distinguished  from  ademption,  550. 

jurisdiction  of  probate  court  when  advancement  is  realty,  551. 

to  what  distributees  the  doctrine  applies,  552. 

to  deceased  person,  when  charged  against  his  child  as  distributee,  552. 

what  constitutes  advancement,  553. 

donee's  rights  in  respect  to,  554. 

computation  of  value,  555.  • 

evidence  to  show  advancements,  556. 

charged  in  partition  of  realty,  568. 
ADVERTISEMENT.     See  Notice. 
AFFIDAVIT.     See  Oath. 

ALIENS, 

power  to  take  personalty  and  realty  of  intestate  or  by  will,  and  to 
will  the  same,  12. 
ALLOWANCE   OF   CLAIM   BY   PERSONAL   REPRESENTATIVE, 

final,  in  some  states,  378. 
ALLOW^ANCE  OF  CLAIMS  IN   PROBATE   COLTIT.     See    Claims 
ag.mnst  Estates  of  Deceased  Persons. 


502  IXDEX. 

[References  are  to  Sections] 

ALLOWANCE    TO    WIDOW  AND  CHILDREN.     See  Provisional 
Alimony. 

ALTERATIONS, 

in  wills,  47. 

AMBIGUITY, 

latent  and  patent,  evidence  to  explain,  413. 

ANCESTRAL   ESTATES, 

their  devolution,  76. 
ANCILLARY   ADMINISTRATION, 

discussed,  Chapter  XVII. 

See  Domiciliary  and  Ancillary  Jurisdiction. 

ANIMALS, 

as  assets,  267. 

as  pertaining  to  realty,  267. 

ANNUAL  SETTLEMENTS, 

only  prima  facie  valid,  not  res  adjudicata,  502. 

ANNUITIES, 

when  they  go  to  personal  representative,  287. 

resort  to  general  estate  when  fund  fails,  454. 

interest  on,  459. 
ANTE  NUPTIAL  SETTLEMENTS.    See  Marriage  Settlements. 

APPEALS   FROM   PROBATE   COURTS, 
subject  discussed.  Chapter  LIX. 
right  given  only  by  statute,  541. 
who  may  appeal,  542. 
from  what  decisions,  543. 
within  what  time,  544. 
the  appeal  bond,  544. 
the  notice  of  appeal,  544. 
power  of  probate  court  after  appeal,  545. 
procedure  on  appeal,  546. 
trial  de  novo,  547. 

APPRAISEMENT, 

of  goods  and  chattels  inventoried,  308. 
prior  to  sale  of  realty,  477. 

APPRENTICES, 

how  contract  affected  by  death,  288. 

ARBITRATION, 

power  of  personal  representative  to  submit  to,  315. 

ASSENT, 

of  executor  to  legacies,  450. 

suit  against  executor  thereon,  569. 

ASSETS, 

heirlooms  not  personalty,  260. 
joint  property,  262. 
chattels  real,  264. 
mortgages,  266. 


I 


INDEX.  503 

[References  are  to  Sections] 
ASSETS  — Continued. 
vendor's  lien,  266. 
animals,  267. 
vegetables,  268. 
emblements,  269. 
fixtures,  270-272. 

See  Survival  of  Actions. 
patents,  copyrights  and  trade  marks,  289. 
rents,  290. 
assets  defined,  294. 

distinguished  from  property  held  in  auter  droit,  294. 
benefits  allowed  after  death,  295. 
insurance  as  assets,  295. 

realty  bought  by  personal  representative  for  estate,  295. 
accretions,  rents,  interest,  296. 
property  in  foreign  jurisdiction,  297. 
debts  of  executor  or  administrator,  299. 
property  held  in  auter  droit  not  asset,  300. 
legal  and  equitable,  301,  482. 
personal  and  real,  302. 

ATTACHMENT, 

will  not  lie  for  decedent's  debt,  380. 

ATTESTING  WITNESSES, 
method  of  signature,  36. 
their  competency,  38. 
proof  when  they  are  not  accessible,  201. 
when  they  repudiate  attestation,  201. 


B. 

BASTARDS.    See  Illegitimate  Children. 

BEQUESTS.    See  Legacies. 

BILLS  AND   NOTES.     See  Negotiable  Paper. 

BONA   NOTABILIA,  187. 

See  Choses  in  Action;  Judgments;  Death  as  Foundation  foe 
Cause  of  Action. 

BOND.     See  Administration  Bond. 

of  executors  and  administrators,  232-245. 

given  in  successive  trust  capacities,  241. 

of  personal  representative  on  sale  of  realty,  473. 

on  appeal  from  probate  court,  544. 

refunding  bond  to  secure  speedy  distribution,  557. 

BUSINESS.    See  Trade. 

C. 

CANCELLATION  OF  WILL.    See  Revocation  of  Wili, 
CAUSA   MORTIS.    See  Donationes  Mortis  Causa. 


504  INDEX. 

[References  are  to  Sections] 

CHARITABLE   USES, 

what  are,  422. 

43  Elizabeth  as  part  of  present  laws,  423. 

upheld  where  other  trusts  fail  for  indefiniteness,  424. 

continue  indefinitely  though  vesting  subject  to  rule  as  to  perpetuities, 
425. 

the  doctrine  of  cy-pres,  426. 

masses  for  the  dead,  427. 
CHATTELS  REAL.    See  Leasehold  Estates. 

CHILDREN.    See  Adopted  Children;  Infants;  Illegitimate  Chil- 
dren; Posthumous  Children;  Pretermitted  Children. 

CHOSES   IN   ACTION, 

where  bona  notabilia  for  probate  jurisdiction,  187. 
CLAIMS    AGAINST    ESTATES    OF    DECEASED    PERSONS.    See 
Priority  of  Debts. 

the  common  law  system  of  payment,  346. 

debts  of  deceased  distinguished  from  liabilities  of  administration,  347. 

See  Funeral  Expenses. 
expenses  of  last  illness,  35L 

See  Payment  of  Debts. 
exhibition  of,  see  Exhibition  of  Claims  against  Estates. 
the  jurisdiction  of  probate  court  to  allow  claims,  379. 
equitable  defences  in  probate  court,  380. 
attachment  will  not  lie  for  decedent's  debt,  380. 
claims  against  estates  of  married  women,  381. 
not  matured,  see  Claims  not  Matured. 
contingent,  see  Contingent  Claims. 
claims  of  personal  representative,  384. 
claims  of  relatives  of  deceased,  385. 
notice  for  allowance  distinguished  from  exhibition,  386. 
when  set-off  can  be  claimed,  387. 

See  Statute  of  Non-claim. 
See  Mortgages  and  Collateral  Securitt. 

CLAIMS   NOT   MATURED, 

what  judgments  rendered  on,  382. 
CLASSES.     See  Testamentary  Classes. 
CO-ADMINISTRATORS.    See  Co-executors. 

CODICILS, 

as  repubUcation  of  will,  43,  55. 

CO-EXECUTORS, 

priority  between  when  in  difTerent  states,  156. 

joint  and  several  bonds,  244. 

voting  stock  of  deceased,  317. 

all  join  in  exercising  power,  333. 

statutory  changes,  335. 

joint;  not  joint  and  several,  339. 

all  must  be  joined  in  suit,  339. 

liability  of  one  for  acts  of  another,  340. 

protection  of  one  against  acts  of  another,  341. 


INDEX.  505 

[References  are  to  Sections] 

CO-EXECUTORS  —  Continued. 

their  compensation,  528. 

accounting  by,  534. 
COLLATERAL   INHERITANCE   TAX, 

discussed,  320. 
COLLATERAL  SECURITY.    See  Mortgages  and    Collateral    Se- 
curity. 
COMMISSION.    See  Compensation  op  Executor  and  Administrator. 
COMMON   FORM, 

probate  of  will  in,  196,  198. 
COMPENSATION   OF   EXECUTOR  AND   ADMINISTRATOR, 

not  at  common  law,  but  by  statute,  524. 

has  priority  over  debts  owing  by  estate,  524. 

in  case  of  maladministration,  525. 

on  what  commissions  are  allowed,  526. 

compensation  for  extra  services,  527. 

of  joint  executors  or  administrators,  528. 

validity  of  agreement  to  divide  commissions,  528. 

of  successive  administrators,  529. 

bequest  to  executor  as  affecting  commission,  530. 

where  same  person  is  executor  and  trustee,  531. 

method  of  charging,  532. 
COMPOUNDING   WITH   DEBTORS, 

powers  of  personal  representative,  314. 

CONDITIONS  TO  LEGACIES  AND  DEVISES, 

precedent  and  subsequent,  434. 

repugnant  conditions,  435. 

restraint  of  alienation,  435. 

spendthrift  trusts,  436. 

gift  conditioned  on  religious  qualifications,  437. 

for  separation  of  married  couple,  438. 

against  disputing  will,  439. 

in  restraint  of  marriage,  440. 
CONFLICT  OF   LAWS, 

change  in  law  as  to  testamentary  formalities,  37. 

devolution  of  realty  by  law  of  state  where  land  lies;  of  personalty  by 
intestate's  domicile,  78. 

what  law  governs  provisional  alimony,  95. 

what  law  governs  homestead,  109. 

mode  of  administration,  including  priority  in  claims  by  law  of  forum, 
163. 

distribution  of  personalty  by  law  of  domicile,  164. 

descent  of  realty  by  lex  rei  sitae,  165. 

what  is  realty  determined  by  lex  rei  sitae,  165. 
See  Situs  of  Property. 

extra-territorial  enforcement  of  Lord  Campbell  Acts,  285. 

accountability  for  assets  in  foreign  jurisdiction,  297,  309. 

in  what  sovereignty  personalty  is  taxable,  319. 

in  what  county  personalty  is  taxable,  319. 

distribution  of  personalty  by  law  of  domicil,  562. 


506  INDEX. 

[References  are  to  Sections] 

CONSTRUCTIVE   CONVERSION, 

of  realty  into  personalty  and  vice  versa,  336. 
CONSTRUCTION   OF   WILLS, 

at  common  law  only  realty  owned  at  date  of  will  passes,  50. 

how  far  probate  court  has  jurisdiction,  151. 

jurisdiction  of  equity  to  construe  wills,  152. 
•  subject  discussed.  Chapter  XLVI. 

ascertaining  testator's  intention,  404. 

several  parts  construed  together,  405. 

general  intent  controlling  particular,  406. 

terms  repeatedly  used,  407. 

transposition  of  words  and  limitations,  408. 

precatory  trusts,  409. 

life  estates  by  implication,  410. 

speaks  from  testator's  death,  411. 

construed  as  of  date  of  execution,  412. 

extrinsic  evidence,  413. 

condition  against  disputing,  439. 

classes,  see  Testamentary  Classes. 

gifts  to  children,  grandchildren,  issue,  how  construed,  414. 

rule  in  Wild's  case,  414. 

when  descendants  of  donee  take  per  capita,  when  per  stirpes,  415. 

heirs,  legal  heirs,  descendants,  relatives,  next  of  kin,  construed,  415. 

cumulative  repeated  and  substituted  legacies,  442. 

gifts  of  rents  and  profits  construed  as  devise  of  land,  492. 
CONTEST   OF  WILLS, 

in  federal  courts,  154. 

administration  pendente  lite,  175. 

various  methods,  200. 

is  in  rem,  200. 

can  attack  only  part  of  will,  200. 

who  can  institute  control,  200. 
CONTINGENT  CLAIMS, 

liabiHty  for  at  common  law,  367. 

how  far  regarded  in  probate  court,  383. 
CONTINGENT  LEGACIES  AND  DEVISES, 

distinguished  from  vested,  430. 
CONTRACTS   OF   DECEASED, 

with  apprentices  and  servants,  288. 

duties  of  personal  representative  as  to,  317. 

when  terminated  by  death,  317. 
CONTRIBUTION, 

enforcible  among  beneficiaries  under  will,  497. 
COPYRIGHTS, 

go  to  personal  representative,  289. 
CORPORATIONS, 

as  executors,  216. 

as  testamentary  donees,  418. 

as  donees  in  trust,  419. 

See  Stock. 


INDEX.  507 

[References  are  to  Sections) 

CORPSE, 

right  to  control  disposition,  261. 

COSTS, 

in  litigation  incident  to  administration,  515. 

COUNSEL  FEES, 

reasonable,  allowed  administrator,  513. 

when  counsel  fees  not  allowed,  514. 

of  executor  in  litigation  to  establish  will,  516. 

COVENANTS   OF  TITLE, 

when  action  lies  by  or  against  personal  representative,  282. 

in  administrator's  deed  on  sale  of  realty,  481. 
CREDITORS.    See  Claims  against  Estates  of  Deceased  Persons. 

CY-PRES, 

applied  to  charities,  426. 

D. 

DEATH  AS  FOUNDATION  FOR  CAUSE  OF  ACTION, 

claims  under  Lord  Campbell  Acts  as  bona  notdbilia,  188. 

the  proof  of,  and  presumptions  as  to,  190. 

for  whose  benefit,  284. 

extra-territorial  enforcement,  285. 
DEBTS  OF  DECEASED.    See  Claims  against  Estates  of  Deceased 

Persons. 
DEBTS  OF  EXECUTOR  OR  ADMINISTRATOR  TO   DECEASED, 

liability  to  estate  at  law  and  in  equity,  299,  510. 

charged  in  account,  510. 

DECLARATIONS, 

of  testator  as  evidence  of  testamentary  capacity,  etc.,  207. 

as  evidence  of  contents  of  last  will,  etc.,  207. 

on  questions  of  ademption,  446. 

of  donor  on  question  of  advancement,  556. 

DEED, 

by  administrator  on  sale  of  realty,  481. 

DEMONSTRATIVE   LEGACIES, 

what  are,  441. 
when  they  abate,  449. 
DESCENT  AND   DISTRIBUTION,  Chapter  VIII. 

"descent"  applies  to  realty;  "distribution"  to  personalty,  66. 

distinction  does  not  exist  in  America,  66. 

affinity  and  consanguinity,  67. 

the  degrees  of  collateral  relationship,  68. 

statutory  modifications,  70. 

See  Representation. 
the  half  blood,  71. 
posthumous  children,  72,  565. 
adopted  children,  7.3. 
illegitimate  children,  74. 
aliens,  12. 


508  INDEX. 

[References  are  to  Sections] 

DESCENT  AND   DISTRIBUTION  —  Consumed, 
ancestral  estates,  76. 
effect  of  killing  of  ancestor  by  heir,  77. 
distribution  of  personalty  governed  by  law  of  domicil,  164. 
descent  of  realty  governed  by  lex  rei  sitos,  165. 

DEVASTAVIT, 

meaning  of  the  term,  533. 

DEVISES, 

for  matters  in  common  with  legncies,  see  Legacies  and  Devises. 

distinguished  from  legacies,  403. 

of  rents  and  profits  as  authorizing  sale,  406. 

DISCHARGE   OF  EXECUTOR  AND   ADMINISTRATOR, 

none  at  common  law,  liability  continuing,  573. 

resignation  and  removal,  258,  573. 

modern  statutes  directing  the  discharge,  574. 

the  final  settlement  as  full  discharge,  575. 
DISTRIBUTION.    See  Descent  and  Distribution;  Advancements. 

advance  payments  in  distribution,  519. 

done  under  order  of  court,  548. 

refimding  bond  to  secure  speedy  distribution,  557. 

order  of  distribution  parties  to,  558. 

parties  to,  558. 

its  conclusiveness,  559. 

nature  and  scope  of,  559. 

payment  to  distributee's  assignee,  560. 

set-off  to  legacies  and  distributee's  shares,  561. 

distribution  of  personalty  by  law  of  domicil,  562. 

deceased  distributee's  share  to  his  administrator,  564. 

posthumous  and  pretermitted  children,  565. 

distribution  without  administration,  566. 

partial  and  premature  distribution,  567. 

enforcement  of  order,  561,  570. 

unclaimed  shares,  disposition  of,  571. 

DIVIDENDS. 

extraordinary  between  life  tenant  and  remaindermen,  456. 

DOMICIL, 

what  constitutes,  189. 
DOMICILIARY  AND  ANCILLARY  JimiSDICTION,  Chapter  XVII. 

no  administration  has  authority  outside  of  appointing  state,  155. 

administration  in  each  state  where  property  lies,  156. 

jurisdiction  over  property  removed   from  one   country  to  another, 
157,  160. 

See  Foreign  Executor  and  Administrator. 

distribution  under  domiciliary  law,  164. 

the  ancillary  court  secures  equality  to  its  citizens,  164. 

DONATIONES  MORTIS   CAUSA,  Chapter  VII. 
definition  of  term,  56. 
apprehension  of  death,  57. 
what  property  can  be  given,  58. 


ETOEX.  509 

[References  are  to  Sections] 

DONATIONES   MORTIS   CAUSA  — Continued. 

parting  with  control,  59. 

delivery  to  third  person,  60. 

revocation  by  donor's,  act,  61. 

by  donor's  recovery,  or  by  donee's  death,  62. 

validity  against  donor's  creditors,  63. 

against  donor's  surviving  family,  64. 

subject  to  succession  tax,  320. 
DOWER, 

discussed.  Chapter  XI. 

as  affecting  homestead,  100. 

in  personalty,  111. 

See  Election. 

in  partnership  realty,  123. 

emblements  on  dower  land,  269. 

sale  of  land  for  debts  subject  to  dower,  484. 

E. 

ECCLESIASTICAL  COURTS, 

their  origin,  133,  134. 

their  powers,  135. 

gradual  limitation  of  their  powers  in  England,  136. 

accounting  in,  498. 
ELECTION, 

between  homestead  and  dower,  100. 

between  provisional  alimony  and  marriage  settlement,  86. 

between  dower  and  devise,  112. 

between  dower  and  widow's  statutory  share,  112. 

where  will  assures  disposal  of  beneficiary's  property,  461. 

EMBLEMENTS, 

to  executor  as  against  heir,  269. 

on  dower  land,  269. 
ENCUMBRANCES.    See  Mortgages  and  Collateral  Sectjritt. 
EQUITABLE  ASSETS, 

what  are,  301,  482. 
EQUITABLE  CONVERSION.    See  Constructive  Conversion. 
ESCHEATS,  Chapter  XIII. 

its  technical  meaning,  125. 

now  merely  signifies  that  state  is  "ultimus  heres,"  126. 

necessity  for  inquest  of  office,  127. 

escheator,  128. 

escheated  estates  remain  subject  to  trusts,  129. 

subsequent  recovery  by  heir  from  state,  130. 

administration  where  there  are  no  known  heirs,  131. 

unclaimed  legacies  and  distributive  shares,  571. 
EVIDENCE.    See  Witnesses,  Declarations,  Admissions;  Presump- 
tions. 

judgment  against  administrator  as  evidence  against  his  sureties,  238. 

execution  of  writing  by  deceased  need  not  be  denied  under  oath,  385. 


510  INDEX. 

[References  are  to  Sections] 

EVIDENCE  —  Continued. 

extrinsic  evidence  in  construing  will,  413. 

in  support  of  final  settlement,  539. 
EXECUTOR, 

distinguished  from  administrator,  167. 

formatters  common  to  Executors  and  Administrators,  see  that  title 
when  title  vests,  168. 

executor's  executor  as  successor  to  original  executorship,  173,  342. 

his  acts  before  grant  of  letters,  178. 

constructive  appointment  in  will,  212. 

constructive  powers  in  will,  333. 

testator's  delegation  of  power  to  appoint,  212. 

qualifications  as  affected  by  residence,  213. 

qualifications  as  affected  by  infancy,  214. 

qualifications  as  affected  by  coverture,  215. 

qualifications  as  affected  by  mental  or  moral  defects,  216. 

corporations  as  executors,  216. 

acceptance  or  refusal  of  office,  217. 

not  required  to  give  bond  at  common  law,  233. 

when  court  can  order  him  to  give  bond,  234. 

See  Powers  of  Executors  under  Will. 
EXECUTORS   AND   ADMINISTRATORS, 

for  matters  peculiar  to  executors,  see  Executor. 

for  matters  peculiar  to  administrators,  see  Administrator. 

do  not  take  realty  at  common  law,  3. 

power  over  realty  in  modern  law,  4,  5. 

surviving  partners  administering  on  partnership,  Chapter  XII. 

priority,  see  Priority  among  Executors  and  Administrators. 

their  title  is  in  auter  droit,  170. 

validity  of  acts  when  the  appointment  void,  and  when  voidable,  259. 

sue  to  set  aside  fraudulent  conveyances  of  deceased,  286. 

what  actions  accrue  in  personal,  and  what  in  representative  capacity, 
293. 

their  liability  for  property  of  third  persons  claimed  as  assets,  294. 

accountability  for  assets  in  foreign  jurisdictions,  297. 

liability  for  estate  property  lost  through  negligence,  298. 

debts  to  deceased  of  personal  representative,  299. 

duty  to  file  inventory,  303. 

duty  to  take  possession  of  property,  309. 

when  property  in  foreign  jurisdiction,  309. 

title  paramount  to  that  of  beneficiaries  of  estates,  310. 

duty  to  prosecute  and  defend  actions  for  and  against  deceased,  311. 

duty  to  bring  suits  in  interest  of  estate,  312. 

power  to  compound  with  debtors,  314. 

power  to  submit  to  arbitration,  315. 

duties  as  to  contracts  of  deceased,  317. 

carrying  on  business  of  deceased,  317. 

voting  stock  of  deceased,  317. 

expenses  of  preservation  of  property,  318. 

See  Expenses  of  Administration. 
See  Sale  of  Personal  Property. 


INDEX.  511 

[References  are  to  Sections] 

EXECUTORS   AND   ADMINISTRATORS  —  Co«<mued 

purchase  at  own  sale,  326. 

investment  and  custody  of  funds,  328. 

measure  of  liability  for  negligence,  328. ' 

duties  when  in  charge  of  real  estate,  337. 

allowing  claims,  378. 

duty  to  invoke  statute  of  non-claim,  390. 

assent  to  legacies,  450. 

purchaser  at  own  sale  voidable,  487. 

charged  with  compound  interest  as  penalty,  507. 

official  liability  for  rents  collected  without  authority,  511. 

recovery  for  overpayment  to  creditor,  520. 

commissions   of,    see   Compensation  of  Executors  and  Adminis- 
trators. 

accountability  for  assets  recovered  in  foreign  jurisdiction,  536. 

discharge  of,  see  Discharge  op  Executors  and  Administrator. 
EXECUTOR  DE  SON   TORT,  Chapter  XXI. 

httle  need  of  doctrine  under  modern  statutes,  180. 

how  constituted,  181. 

his  liability,  182. 

effect  of  appointment  on  prior  acts,  183. 
EXECUTORY   DEVISES, 

what  they  are,  433. 

EXHIBITION  OF  CLAIMS  AGAINST  ESTATE, 
subject  discussed.  Chapter  XLI. 
its  necessity,  374. 

what  constitutes  sufficient  exhibition,  375. 
revival  of  action  against  deceased  as  exhibition,  375. 
time  for,  376. 

EXPECTANCY, 

of  heir  assignable,  554. 

EXPENSES   OF  ADMINISTRATION, 
for  preservation  of  property,  318, 
redeeming  from  lien,  317. 

See  Taxes. 
See  Succession  Tax. 
when  direct  enforcement  against  estate,  347. 
See  Funeral  Expenses. 
expenses  of  last  illness  sometimes  preferred  to  all  debts,  351. 
when  cost  of  litigation  included,  352. 
what  are  proper  expenditures,  512. 

See  Counsel  Fees. 
disbursements  in  respect  to  real  estate,  517. 


F. 


FAC-SIMILE, 

probate  of  will  in,  206. 
FAILURE   OF   ISSUE, 

definite  or  indefinite,  420. 


512  INDEX. 

[References  are  to  Sections] 

FEDERAL  COURTS, 

jurisdiction  of,  in  probate  matters,  154. 

in  claims  barred  by  statute  of  non-claim,  392. 

FIDUCIARY   RELATIONS, 

presumption  of  undue  influence  when  bequest  to  fiduciary,  23. 

FINAL   SETTLEMENTS, 

only  on  giving  statutory  notice,  503. 

conclusive  as  to  matters  embraced  therein,  504,  572. 

setting  aside  in  probate  court,  505. 

setting  aside  in  chancery  court,  506. 

compelling,  537. 

correcting  errors  by  court,  538. 

evidence  to  support;  vouchers,  539. 

exceptions  to,  540. 

See  Liability  of  Estate  after  Final,  Settlement. 

FIXTURES, 

between  heir  and  personal  representative,  270. 

between  devisee  and  personal  representative.  271. 

between  life  tenant  and  remainderman,  272. 
FOREIGN   EXECUTOR   AND   ADAIINISTRATOR, 

power  outside  of  state  only  by  comity,  158. 

statutes  extending  comity,  161. 

voluntary  payments  to  them,  159. 

extra  territorial  validity  of  title  once  vested,  160. 

liability  outside  of  state  for  assets,  164. 

liability  for  assets  received  out  of  state,  536. 

FOREIGN   WILLS, 

probate  of,  209. 
FRAUDULENT   CONVEYANCES, 

suits  to  set  aside,  by  whom  brought,  286. 
FUNERAL  EXPENSES, 

debt  of  estate  or  incident  of  administration,  348. 

the  amount  allowed,  349. 

what  items  included,  350. 


G. 

GARNISHMENT, 

of  personal  representative  as  owing  creditors  or  beneficiaries,  570. 

GRANT   OF   LETTERS, 
in  what  sovereignty,  186. 
in  what  local  jurisdiction,  186. 
when  granted  in  wrong  local  jurisdiction,  186. 

See   NON-RESIDEXTS. 

the  petition  for;  its  allegations,  247. 

notice  to  parties  entitled  to  administer,  248. 

is  in  rem,  249. 

who  can  object  to  grant,  249. 

granted  by  clerk  in  vacation,  250. 


INDEX.  513 

[References  are  to  Sections] 
GRANT   OF   LETTERS  — Continued. 
the  oath  of  office,  251. 

grant  void  where  court  has  no  jurisdiction,  252. 
otherwise  not  collaterally  assailable,  252. 


H. 

HEIRLOOMS, 

not  personalty,  260. 

HOLOGRAPHIC   WILL,  39. 
HOMESTEAD, 

discussed.  Chapter  X. 

as  mere  exemption  or  as  estate,  97. 

property  constituting,  98. 

the  widow's  right,  99. 

affected  by  dower,  100. 

the  right  of  minor  children,  103. 

abandonment  affecting  homestead,  102. 

the  right  to  sell,  101. 

affected  by  encumbrances,  104. 

by  testamentary  provisions,  105. 
by  administration,  106. 

procedure  for  setting  out,  107. 

not  subject  to  succession  tax,  320. 
HOTCHPOT, 

what  is,  549. 

I. 

IDIOTS, 

incapacity  to  make  will,  16. 

ILLEGITIMATE   CHILDREN, 
participation  in  distribution,  74. 

IMBECILITY, 

total  and  partial,  16. 
IMPLICATION, 

appointment  of  executor,  by  212. 

estate  by,  under  wills,  410. 

INCOME, 

restrictions  on  accumulation,  421. 
profits  as  part  of  life  tenants  estate,  455. 

INFANTS, 

capacity  to  make  will,  13. 

legacy,  to  whom  payable,  460. 

w'hen  bond  by  final  settlement,  503. 
INHERITANCE   TAX, 

discussed,  320. 

IN  REM, 

how  far  probate  court  proceedings  are  in  rem,  144. 
the  probate  of  the  will,  200. 


514  INDEX. 

(References  are  to  Sections] 

IN  REM  —  Continued. 

the  grant  of  letters,  249. 

the  order  of  distribution,  558. 

INSANITY, 

testamentary  capacity,  17. 

who  are  insane,  17. 

partial  insanity,  17. 

presumptions  as  to  sanity,  18. 

lucid  intervals,  19. 

opinions  of  non-experts  as  to  sanity,  20. 

INSOLVENT   ESTATES, 

special  administration  thereon  in  some  states,  394. 

how  estates  are  declared  insolvent,  395. 

the  procedure,  396. 

time  within  which  demands  must  be  presented,  397. 

INSURANCE, 

as  assets  of  estate,  295. 

premium  as  expense  of  administration,  318. 

INTEREST, 

as  assets,  296. 

on  legacies,  457. 

when  time  of  payment  fixed  by  will,  458. 

on  annuities,  459. 

charged  administrator  in  account,  509. 

compounded  as  penalty,  509. 

on  advances  as  credit  to  administrator,  523. 

INVENTORY, 

office  and  necessity  of,  303. 

within  what  time  it  must  be  filed,  304. 

what  property  must  be  inventoried,  305. 

includes  realty,  305. 

court  cannot  compel  putting  of  property  into  inventory,  305. 

particularizations  in  inventory,  306. 

indication  of  values,  307. 

INVESTMENTS, 
^    duties  of  personal  representative  as  to,  328. 


J. 

JOINT  PROPERTY, 

as  assets,  262. 

as  assets  of  partnership,  113. 

JUDGMENTS, 

where  bona  notabilia  for  probate  jurisdiction,  187. 
against  administrator  as  rendering  his  sureties  liable,  238. 
entered  after  death  on  prior  verdict,  311. 
assent  to  judgment  by  personal  representative,  312. 
when  they  have  priority  as  claims  against  estate,  359. 


INDEX.  515 

[References  are  to  Sections] 

JURISDICTION  OF  PROBATE  COURTS, 
discussed,  Chapter  XVI. 
over  partnership  estates,  123. 
no  state  gives  all  theoretical  powers,  146. 
no  powers  to  try  issue  between  personal  representative  and  outsider, 

147. 
nor  transfers  of  beneficiaries,  147,  560. 
nor  liabilities  arising  to  outsiders  from  administration,  148. 
claims  against  deceased,  149. 
powers  necessarily  implied,  150. 

construction  of  wills  only  so  far  as  is  necessary  for  distribution,  151. 
exclusive  and  concurrent  jurisdiction,  153. 

See  Grant  of  Letters. 
to  probate  wills,  194. 

to  allow  claims,  discussed.  Chapter  XLII. 
to  order  sale  of  realty,  463. 
to  marshall  assets,  496. 
over  settlements,  501. 
to  set  aside  final  settlement,  506. 
in  case  after  an  appeal,  545. 
over  advancements  of  realty,  551. 
in  partition  of  realty,  568. 

L. 

LAPSE, 

of  gift  causa  mortis  by  donee's  death,  62. 

of  testamentary  gift  by  death  of  donee  before  testator,  428. 

death  of  one  of  a  class,  428. 

statutory  preservation  of  gift  for  issue  of  deceased  donee,  429. 

death  destroying  contingent  testamentary  gifts,  430. 

devolution  of  void  and  of  lapsed  testamentary  gifts,  431. 

as  modified  by  statute,  432. 

LEASEHOLD   ESTATES, 

governed  by  lex  rei  sitae,  165. 
as  assets,  264. 

LEGACIES, 

for  matters  in  common  with  devises,  see  Legacies  and  Devises. 

distinguished  from  devises,  403. 

interest  on,  457. 

when  time  of  payment  fixed  by  will,  458. 

set  off  to,  561. 

unclaimed,  disposition  of,  571. 

LEGACIES  AND  DEVISES.  See  Lapse;  Conditions  to  Legacies 
AND  Devises;  Ademption;  Satisfaction  of  Legacies;  Liability  of 
Estate  after  Final  Settlement. 

contingent  and  vested  distinguished,  430. 

remainders  vested  and  contingent,  433. 

executory  devises,  433. 

specific,  demonstrative,  general,  and  residuary  distinguished,  441. 

cumulative,  442. 


516  .  INDEX. 

[References  are  to  Sections) 

LEGAL  REPRESENTATIVES. 

See  Executors  and  Administrators. 
construction  of  term  in  will,  415. 

LETTERS  TESTAMENTARY  AND  OF  ADMINISTRATION.     See 
Grant  of  Letters. 

LIABILITY  OF  ESTATE  AFTER  FINAL   SETTLEMENT, 
subject  discussed,  Chapter  LXIII. 
of  legatees  and  distributees  at  common  law,  576. 
of  heirs  and  devisees  at  common  law,  577. 
of  all  beneficiaries  under  statutes,  578. 
what  creditors  can  assert  right,  579. 
extent  of  beneficiaries'  liability,  580. 
the  creditors'  form  of  remedy,  58  L 
beneficiaries'  liability  joint  or  several,  581. 
liability  of  purchaser  from  heir  or  devisee,  581. 

LIFE  ESTATE, 

power  of  disposal  with,  433. 

in  chattels,  with  remainder,  453. 

profits  as  part  of  life  tenant's  income,  455. 

extraordinary  dividends  between  life  tenant  and  remainderman,  456. 

LIMITATIONS.      See  Statute  of  Non-claim. 

personal  representative  not  bound  to  plead  the  general  statute,  391. 

does  not  run  while  no  administration,  391. 

on  following  trust  funds  in  administrator's  hands,  392. 

set  off  to  legacies  and  distributed  shares  not  barred  by,  561. 

administrator  plead  to  distributee's  suit,  569. 

LIVING  PERSONS, 

administration  on  estates  of,  191. 

LORD  CAMPBELL  ACTS.    See  Death  as  Foundation  for  Cause  of 
Action. 

LOST  WILLS, 

probate  of,  197,  204. 

M. 
MARRIAGE, 

revocation  of  will  by,  52,  53. 

legacies  and  devises  in  restraint  of,  440. 

MARRIAGE   SETTLEMENTS, 

election  between  provisional  alimony  and  marriage  settlement,  86 . 
ante-nuptial  settlements,  274. 
post-nuptial  settlements,  275. 

MARRIED   WOMEN, 

power  to  make  wills,  14. 
at  common  law,  14. 
in  equity,  14. 
under  statutes,  14. 

See  Marriage  Settlements. 
See  Separate  Property  of  Wife. 


INDEX.  517 

[References  are  to  Sections] 

MARRIED  WOMEN  —  Continued. 
claims  against  estates  of,  381. 
legacy,  to  whom  payable,  460. 

MARSHALLING  ASSETS, 

order  in  which  legacies  and  devises  abate,  489. 
testamentary  charge  of  debts  on  realty,  490. 
testamentary  charge  of  legacy  on  realty,  491. 
charge  of  debt  on  land  as  exonerating  specific  legacies,  493. 
exoneration  of  mortgaged  property,  494,  495. 
jurisdiction  of  probate  courts  to  marshall  assets,  496. 

MASSES  FOR  THE   DEAD, 

validity  of  bequests  for,  427. 

MORTGAGES  AND  COLLATERAL  SECURITY, 

affected  by  provisional  alimony,  87. 

affected  by  homestead,  104. 

as  assets,  266. 

redemption  by  personal  representative,  318. 

what  amount  proved  against  estate  under  equity  rule,  398. 

what  amount  proved  against  estate  under  bankruptcy  rule,  398. 

proceeding  to  establish  lien  independent  of  establishing  debt  against 

estate,  399. 
statutory  suspension  of  right  to  foreclose  lien,  399. 
mortgaged  property  exonerated  by  the  will,  494,  495. 

MORTMAIN.    See  Religious  Purposes. 


N. 

NEGOTIABLE   PAPER, 

where  no  personal  representative  of  deceased  holder  at  maturity,  316. 
method  of  protesting  against  deceased  party  to  the  paper,  316. 

NEXT   OF   KIN, 

computation  of  relationship,  68. 
construction  of  terms  in  will,  415. 

NON-CLAIM.    See  Statute  of  Non-claim. 

NON-RESIDENTS, 

jurisdiction  over  estates  as  determined  by  situs  of  property,  187. 

See  Situs  of  Property. 
who  entitled  to  administration  as  non-resident's  estate,  229. 
property  of  subject  to  succession  tax,  320. 

NOTICE, 

of  grant  of  letters,  its  purpose  and  effect,  373. 

to  administrator  to  establish  claim,  386. 

distinguished  from  exhibition  of  claim,  386. 

to  heirs  of  application  for  sale,  467. 

of  sale  of  realty,  476. 

none,  for  settlement  for  predecessor  with  administrator  d.  b.  n.,  535. 

of  appeal  from  probate  court,  544. 

of  order  of  distribution^  558. 


518  INDEX. 

[References  are  to  Sections] 

NUNC  PRO   TUNC, 

entering  judgments,  143. 

NUNCUPATIVE  WILLS, 

to  what  extent  allowed,  40. 

their  formalities,  41. 

sailor's  and  soldier's  wills,  42. 


O. 

OATH, 

to  petition  for  grant  of  letters,  247. 

of  office  of  executor  and  administrator,  251. 

of  creditor  to  claim,  377. 

of  personal  representative  on  sale  of  realty,  473. 

to  settlements  of  personal  representative,  539. 

ORDER   TO   PAY   DEBTS, 
when  made,  401, 

is  personal  judgment  against  personal  representative,  401. 
enforcement  of  the  order,  402. 

OWELTY,  568. 

P. 

PARAPHERNALIA,  277. 

PARTIAL   DISTRIBUTION, 
how  made,  567. 

PARTITION, 

of  realty  in  probate  court,  568. 

PARTNERSHIP   ESTATES, 
discussed.  Chapter  XII. 

at  law,  the  title  to  firm  property  in  survivors,  113. 
at  law,  survivors  alone  liable  to  firm  creditors,  113. 
in  equity  surviving  partner  is  trustee,  114. 
survivor's  right  to  prefer  among  creditors,  115. 
survivors  continue  firm  business  at  their  risk,  116. 
no  notice  of  firm  dissolution  by  death  required,  116. 
continuance  of  firm  business  by  direction  of  deceased,  117. 
firm  creditor's  equitable  remedy  against  estate  of  deceased,  118. 
creditors  of  deceased  have  no  remedies  against  surviving  partners,  119. 
representative  of  deceased  can  demand  accounting,  119. 
final  distribution  of  partnership  estate,  120. 
the  good  will  of  the  firm,  121. 
the  realty  of  the  partnership,  122. 
the  widow's  dower  in  partnership  realty,  122. 
administration  of  partnership  under  Missouri  law,  123. 

PATENTS, 

go  to  personal  representative,  289. 

PAYMENTS  OF   DEBTS, 

to  foreign  administrator,  159. 


INDEX.  519 

[References  are  to  Sections] 
PAYMENTS   OF   DEBTS  —  Continued. 

right  of  personal  representative  to  make  preferences  at  common  law, 

365. 
creditors'  bill  destroying  right  to  prefer,  365. 

See  Retainer. 
contingent  claims  as  defence  to  distributee's  demand,  367. 
defences  against  claims  at  common  law,  368. 
judgment  de  bonis  testatoris  at  common  law,  368. 
how  made  personal  at  common  law,  370. 
liability  of  personal  representative  in  equity,  371. 
modem  statutory  systems  contrasted  with  common  law,  372. 
See  Notice  of  Grant  of  Letters. 
See  Exhibition  of  Claims  against  Estate. 
allowance  by  personal  representative,  378. 
court  order  of  payment  as  protection  against  later  claims,  393. 

See  Order  to  Pay  Debts. 
allowance  gives  no  right  till  order  of  payment,  400. 
administrator's  right  to  recover  overpayment,  520. 

See  Liability  of  Estate  after  Final  Settlement. 

PERISHABLE   PROPERTY, 

sale  by  personal  representative,  323. 
life  estate  in,  with  remainder  over,  453. 

PERPETUITIES, 

the  rule  against,  420. 

PIN-MONEY,  276. 

PLENE  ADMINISTRAVIT, 

plea  of,  at  common  law,  368. 
POSTHUMOUS   CHILDREN, 

share  in  distribution,  72,  565. 
POST-NUPTIAL  SETTLEMENTS.    See  Marriage  Settlements. 

POWERS   OF   EXECUTORS   UNDER  WILL, 

to  donees  personally  or  qua  executor,  333,  334. 

statutory  changes,  335. 

to  sell,  as  including  power  to  mortgage,  338. 

to  sell  for  debts,  464. 

to  raise  fund  out  of  rents  as  authorizing  mortgage,  492. 
PRECATORY   TRUSTS, 

in  wills,  409. 
PRESUMPTIONS, 

as  to  seaman's  will,  24. 

against  legacy  to  fiduciary,  23. 

that  devise  is  in  addition  to  dower,  112. 

as  to  testator's  sanity,  18. 

as  to  death,  190,  460. 

as  to  survivorship,  190. 

against  claims  of  relations  as  creditors,  384, 

legacy  presumed  in  satisfaction  of  debt,  444. 

gift  to  child  before  death  presumed  ademption,  445, 

of  advancement,  rather  than  gift,  or  loan,  553. 


520  INDEX. 

[References  are  to  Sections] 

PRETERMITTED   CHILDREN, 
take  share  as  in  intestacy,  565. 

PRIORITY   AMONG   DECEDENT'S   DEBTS, 

at  common  law,  354. 

funeral  and  last  illness,  355. 

debts  due  United  States,  356. 

debts  due  the  state  and  municipalities,  357. 

debts  owing  in  fiduciary  capacity,  358. 

judgments  against  decedent,  359. 

debts  by  specialty,  360. 

rent,  361. 

wages,  362. 

debts  proved  after  a  fixed  statutory  period  as  inferior  class,  363,  393. 

PRIVITY  BETWEEN   EXECUTORS  AND  ADMINISTRATORS, 

when  in  different  states,  156. 

between  co-executors  or  co-administrators,  333-340. 
PRIVITY   BETWEEN   SUCCESSIVE  ADMINISTRATIONS, 

how  far  a  later  administrator  bound  by  acts  of  a  prior,  345. 

the  relation  between  an  administrator  d.  b.  n.  and  his  predecessor, 
343,  344. 

PROBATE   COURTS, 

their  functions  as  distinguished  from  those  of  other  courts,  6. 

See  Ecclesiastical  Courts. 
origin  of  probate  courts  in  America,  137. 
all  their  powers  derived  from  statute,  138. 
are  they  courts  of  record,  139,  140. 

the  conclusiveness  of  their  judgments  in  collateral  proceedings,  141. 
they  have  full  powers  over  their  judgments  during  the  term,  142. 
thereafter  they  correct,  nunc  pro  tunc,  only  by  matters  of  record,  143. 
intervening  rights  protected  in  nunc  pro  tunc  entries,  143. 
how  far  these  courts  act  in  rem,  144. 
pleading  and  practice  in  probate  courts,  145. 

See  Jurisdiction  of  Probate  Courts. 
See  Appeals  from  Probate  Courts. 
power  in  case  after  appeal,  545. 

PROBATE   OF   WILLS, 
its  necessity,  193. 
in  what  courts  made,  194. 
within  what  time  it  must  be  done;  and  within  what  time  permitted, 

195. 
proof  in  common  form,  196,  198. 
proof  in  solemn  form,  196,  199. 

See  Contest  of  Wills. 
See  Lost  Wills. 
proof  when  attesting  witness  not  accessible,  201. 
proof  of  will  in  part,  205. 
in  facsimile,  206. 

establishing  will  already  proved  in  foreign  jurisdiction,  209. 
conclusiveness  of  probate,  211. 
how  far  it  leaves  interpretation  open,  211. 


INDEX.  521 

[References  are  to  Sections] 

PROCEDURE  IN  PROBATE  COURTS, 

of  pleadings  and  trials,  145. 
PROCEEDS   OF   SALE   OF   REALTY, 

excess  after  satisfying  clainas,  482. 
PROFITS, 

as  part  of  life  tenant's  income,  455. 

PROMISE  OF  PERSONAL  REPRESENTATIVE, 

as  binding  estate,  369. 

PROMISSORY   NOTES.     See  Negotiable  Paper. 

PROPERTY, 

its  nature,  and  its  devolution  on  owner's  death,  1. 
See  Situs  of  Property. 
See  Assets. 
corpse  not  property,  261. 
control  of  the  grave,  261. 

See  Separate  Property  of  Wife. 
expenses  for  preservation  by  personal  representative,  318. 
See  Sale  of  Personal  Property. 
See  Realty. 
PROTEST.     See  Negotiable  Paper. 

PROVISIONAL  ALIMONY  FOR  WIDOW  AND  CHILDREN, 
Chapter  IX. 

how  affected  by  gifts  mortis  causa,  64. 
its  nature  and  mode  of  allowance,  79,  80. 
its  amount,  81,  82. 
as  influenced  by  insolvency,  83. 
by  amount  of  widow's  separate  property,  84. 
by  testamentary  provisions,  85. 
by  marriage  settlement,  86. 
by  prior  liens,  87. 
when  it  takes  effect,  88. 
who  can  take,  89-91. 
out  of  what  property,  92. 
time  of  claim,  93. 
additional  allowance,  94. 
has  priority  over  creditors,  353. 
distinguished  from  distributive  share,  353. 
when  administrator  takes  credit  for,  518. 
PUBLIC   ADMINISTRATOR, 
the  nature  of  the  office,  174. 
his  right  to  take  administration,  223. 

PURCHASE   MONEY, 

on  sale  of  realty  to  pay  debts,  480. 
PURCHASER  OF  REALTY  AT  ADMINISTRATOR'S  SALE, 

liability  for  incumbrances,  483. 

liability  to  dowress  and  homestead  tenant,  484. 

cerveat  emptor  applied,  485. 

his  rights  in  equity,  486. 

executors  and  administrators  as  purchasers,  487. 


522  INDEX. 

[References  are  to  Sections] 


R. 

REALTY,  See  Sale  of  Real  Estate. 

power  to  devise  at  common  law,  10. 

will  disposing  only  of  realty  owned  at  its  date,  50,  411. 

partnership  realty,  122. 

realty  descends  by  lex  rei  sitae,  165. 

what  is  realty  determined  by  lex  rei  sitoe,  165. 

realty  descends  to  heir,  3,  177,  263. 

statutory  modifications  of  the  rule,  329,  331. 

charged  with  payment  of  debts  under  will,  449. 

disbursement  as  to  allowed  administrator,  517. 

partition  in  probate  court,  568. 
REFUNDING   BONDS, 

to  secure  speedy  distribution,  557,  567. 

RELATIONS, 

construction  of  term  in  will,  415. 

RELATIVES  OF   DECEASED, 

claims  against  estate,  385. 
RELIGIOUS  PURPOSES, 

doctrine  of  superstitious  uses  abolished,  416. 

common  law  doctrine  as  to  mortmain  abolished,  417. 

statutory  restrictions  of  power  to  will  for  charity,  417. 
See  Masses  for  the  Dead. 

gift;  conditioned  on  rehgious  qualification,  437. 

REMAINDERS, 

vested  and  contingent,  433. 

after  life  estate  with  powers  of  disposal,  433. 

life  estate  in  chattels  with  remainder,  453. 

extraordinary  dividends  between  life  tenant  and  remainderman,  456. 

REMOVAL   OF   EXECUTORS  AND  ADMINISTRATORS, 

by  court  for  cause,  258. 
RENT   CHARGE, 

when  it  goes  to  personal  representative,  287. 

RENTS, 

when  they  go  to  personal  representative,  and  when  with  title  to  realty, 
290. 

apportionment  between  life  tenant  and  remainderman,  291. 

as  assets,  296. 

to  heir  or  devisee  until  sale  under  power,  337. 

a  claim  entitled  to  priority,  361. 

when  administrator  chargeable  with,  511. 

official  liability  for  rents  collected  without  authority,  511. 
RENUNCIATION, 

by  executor,  217. 

of  right  to  administer,  226,  227. 
REPORT   OF   SALE, 

of  realty,  479. 


INDEX.  523 

[References  are  to  Sectional 

REPRESENTATION, 

how  far  it  extends  under  statutes,  69. 
when  relatives  take  per  capita  and  when  per  stirpes,  69. 
when  advancement  to  parent  charged  against  his  child,  552. 
RESIDENCE.     See  Domicil. 

RESIDUE, 

to  executor  at  common  law,  462. 

as  now  disposed  of,  462. 
RESIGNATION  OF  EXECUTORS  AND  ADMINISTRATORS, 

power  of  court  to  accept,  258,  573. 

RESTRAINT  OF  ALIENATION, 
how  far  permitted,  435. 
in  charitable  uses,  425. 

RETAINER, 

right  of  personal  representative  to  retain,  366. 
under  modern  statutes,  384. 

REVIVAL   OF   ACTIONS, 

in  name  of  personal  representative,  311. 
as  exhibition  of  claims,  375. 

REVOCATION   OF   LETTERS,  Chapter  XXIX. 

jurisdiction  usually  only  in  probate  court,  253. 

of  void  and  voidable  grant  of  letters,  254,  259. 

discretion  of  court  in  revoking,  255. 

causes  for  revocation,  255,  256. 

who  may  move  for  revocation,  257. 

immediately  ends  powers  of  persons  removed,  259. 
REVOCATION   OF   PROBATE   OF   WILL,  210. 

REVOCATION  OF  WILLS  BY  TESTATOR,  Chapter  VI. 
by  cancelling,  etc.,  45. 
partial  revocation  by  cancelling,  47. 
dependent  relative  revocation,  46. 
by  subsequent  will,  48. 

revival  of  prior  by  revocation  of  later  will,  49. 
by  inconsistent  disposition  of  property,  51. 
by  marriage  of  femme  sole,  52. 
by  marriage  of  male  and  birth  of  issue,  53. 
by  failure  to  provide  for  issue,  54. 


SALE  OF  PERSONAL  PROPERTY, 

power  of  personal  representative  at  common  law,  321. 

under  modern  statutes,  322. 

of  perishable  property,  323. 

method  and  notice  of  sale,  324. 

terms  and  method  of  payment,  325. 

record  and  report  of  sale,  327. 

for  distribution,  559. 


524  INDEX. 

[References  are  to  Sections) 

SALE  OF  REAL  ESIATE, 

varying  extent  of  statutory  powers,  330-332. 

See  Powers  of  Executors  under  Will. 

for  payment  of  debts,  discussed.  Chapter  L. 

jurisdiction  of  probate  court  to  order,  463. 

who  may  apply  for  order,  465. 

within  what  time  application  may  be  made,  466. 

notice  to  heirs  of  application,  467. 

essentials  of  petition,  468. 

proof  of  existence  of  debts,  469. 

proof  of  insufficiency  of  personalty,  470. 

what  defences  heir  can  make,  47  L 

what  interest  of  decedent  can  be  sold,  472. 

bond  and  oath  of  personal  representative,  473. 

the  order  of  sale,  474. 

the  sale  and  its  consummation  discussed,  Chapter  LI. 

notice  of,  476. 

appraisement  before  sale,  477. 

the  sale  itself,  478. 

adjourning  sale,  478. 

report  and  confirmation  of  sale,  479. 

payment  of  purchase  money,  480. 

the  deed,  481. 

excess  of  proceeds  after  satisfying  claim,  482. 

sale  is  subject  to  defects  and  incumbrances,  483. 

sale  is  subject  to  dower  and  homestead,  484. 

See  Purchaser  of  Realty  at  Administrator's  Sale. 

how  far  proceedings  open  to  collateral  attack,  488. 
SANITY.     See  Insanity. 

the  burden  of  proof  on  probate  of  will,  18. 

the  opinions  of  non-experts,  20,  203. 
SATISFACTION   OF   LEGACIES, 

preference  of  creditors  over  legatees,  448. 

the  order  in  which  they  abate,  449. 

charge  of  debts  on  residuary  realty  and  personalty,  449. 

assent  of  executor,  450. 

time  for  paying  legacies,  451,  452. 

legacies  payable  at  future  time  by  will,  451. 

life  estate  in  chattels  with  remainder,  453. 
See  Annuities. 

infant's,  to  whom  payable,  460. 

married  woman's  legacy,  to  whom  payable,  460. 

on  legatee's  presumptive  death,  460. 

See  Marshalling  Assets. 
SEAMAN'S  WILL, 

presumption  against  beneficiaries,  24. 

formalities,  42. 
SEPARATE   PROPERTY   OF   WIFE, 

as  influencing  provisional  alimony,  84. 

her  chattels  real,  265. 

See  Marriage  Settlement. 


INDEX.  525 

[References  are  to  Sections] 

SEPARATE   PROPERTY   OF   WIFE  — Continued. 
her  chattels,  273. 
pin-money;  wife's  earnings,  276. 
paraphernalia,  277. 
her  choses  in  action,  292. 

SERVANTS, 

how  contract  affected  by  death  of  master,  288. 

SET-OFF, 

when  it  can  be  made  to  claim  in  probate,  387. 

must  be  pleaded,  387. 

to  legacies  and  distributive  shares,  561. 

SETTLEMENTS.    See  Annual  Settlements;  Final  Settlements. 

SHELLEY'S   CASE, 
the  rule  in,  415. 

SITUS   OF   PROPERTY, 

of  realty,  chattels,  and  choses  in  action  as  determining  jurisdiction, 

187. 

SPECIALTIES, 

as  bona  notabilia,  187. 

priority  as  claims  against  estate,  359. 

SPECIFIC   LEGACIES, 
what  are,  441. 
when  they  abate,  449. 

SPENDTHRIFT   TRUSTS, 
their  validity,  436. 

STATUTE  OF   NON-CLAIM, 

with  reference  to  time  of  exhibition  of  claim,  389. 
distinguished  from  general  statute  of  limitations,  390. 
duty  of  personal  representative  to  invoke,  390. 
what  bars  its  running;  and  in  whose  favor,  392. 
application  in  federal  courts,  392. 
subsequent  claims  subordinated,  393. 

STOCK, 

the  personal  representative  voting,  317. 

extraordinary   dividends   between    life    tenant   and   remainderman, 
456. 

SUBROGATION, 

of  parties  compelled  to  pay  decedent's  debt,  to  the  creditor's  claims, 
497. 

SUCCESSION  TAX, 
discussed,  320. 

SUMMARY   PROCEEDINGS, 

to  recover  assets,  313. 

to  enforce  order  for  payment  of  debts,  402. 

to  enforce  order  of  distribution,  570. 
SUPERSTITIOUS  USES.    See  Religious  Purposes. 


52G  INDEX. 

[References  are  to  Sections] 

SURVIVAL  OF  ACTIONS, 
at  common  law,  278. 

when  estate  of  deceased  wrongdoer  is  benefited,  279. 
under  modern  statutes,  280. 
injuries  to  personalty,  281. 
actions  concerning  realty,  282. 
injuries  to  the  person  or  character,  283. 
injuries  resulting  in  death,  284,  285. 
fraudulent  conveyances  of  deceased,  286. 
annuities  and  rent  charges,  287. 

SURVIVORSHIP, 

presumption  as  to,  190. 


T. 

TAXES  ON  PERSONALTY, 

as  debt  of  estate  or  as  expense  of  administration,  319. 
See  Conflict  of  Laws. 

TESTAMENTARY    CAPACITY,    11,    15-25.     See   Aliens;   Infants; 
Married  Women;  Idiots;  Insanity;  Undue  Influence. 
degree  of  mental  vigor  required,  15. 
restrictions  as  to  gifts  for  charity,  417. 

TESTAMENTARY   CLASSES, 

gifts  to,  when  they  vest,  and  who  included,  414. 
death  of  one  of  a  class  before  testator,  428. 

TRADE, 

of  deceased  carried  on  by  personal  representative,  317. 

TRADE   MARKS, 

go  to  personal  representative,  289. 

TRANSFER  OF  PERSONAL  PROPERTY.    See  Sale  of  Personal 
Property. 

TRUST   FUNDS, 

when  administrator  is  ofiBcially  liable  for,  294. 
when  claimant  must  prove  as  general  creditor,  392. 


U. 

UNCLAIMED  LEGACIES  AND  DISTRIBUTIVE  SHARES, 
disposition  of,  571. 

UNDUE  INFLUENCE, 

invalidating  wills,  21. 
what  constitutes,  22. 
avoiding  portions  of  will,  25. 

UNITED   STATES, 

priority  for  debts  due  the  government,  356. 

UNITED  STATES  COURTS.    See  Federal  Courts. 


INDEX.  527 

[References  are  to  Sections] 

V. 

VENDOR'S  LIEN, 

as  asset,  266. 

VESTED   LEGACIES   AND   DEVISES, 
distinguished  from  contingent,  430. 

VOID   LEGACIES   AND   DEVISES, 

their  devolution  as  distinguished  from  lapsed  testamentary  gifts,  431. 

W. 

WAGES, 

as  claim  entitled  to  priority,  362. 

WAIVER.    See  Renunciation. 

WIDOW, 

her  distributive  share  not  aflfected  by  remarriage,  563. 

WILD'S  CASE, 
rule  in,  415. 

WILLS, 

property  disposable  by,  under  Roman  and  English  law,  9. 
of  realty  at  common  law,  10. 
of  uses  in  equity,  10. 

See  Testamentary  Capacity. 
form,  execution,  and  attestation.  Chapter  V. 
distinguished  from  present  conveyance  of  future  interest,  27. 
conditional  wills,  28. 
joint  and  mutual  wills,  29,  30. 
wills  in  pursuance  of  contract,  31,  32. 
-  no  particular  formality  as  to  contents,  33. 
or  language,  or  writing  material,  34. 
the  signature,  35. 
the  attestation,  36. 

See  Attesting  Witnesses. 
change  in  law  as  to  testamentary  formalities,  37. 
holographic  wills,  39. 

papers  referred  to  in  will  as  part  thereof,  205. 

See  Nuncupative  Wills. 

See  Codicils. 

See  Revocation  of  Wills  by  Testator. 

See  Construction  of  Wills. 

See  Probate  of  Wills. 

WITNESSES, 

opinion  of  non-expert  as  to  sanity,  20,  203. 
legatees  and  heirs  as  to  testators'  capacity,  202. 
claimant  as  witness  to  prove  claim,  388. 


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